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 ' Law ^"'--3 Of 
 
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 f E4MS VV ,• QLkMGY 
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 SUrWEME COURT BUILDING 
 SANTA FE, nm MEXICO 
 
 ^4^^^/
 
 AN ESSAY 
 
 ON 
 
 THE PRINCIPLES 
 
 OF 
 
 CIRCUMSTANTIAL EVIDENCE 
 
 XUusttattti i)^ ISTumcrous (tantn 
 
 BY THE LATE 
 
 WILLIAM WILLS, Esq. 
 
 JUSTICE OF THE PEACE 
 
 EDITED BY HIS SON 
 
 SIR ALFRED WILLS, Knt. 
 
 ONE OF HIS MAJESTY'S JUDGES OF THE HIGH COURT OF JUSTICE 
 
 FIFTH ENGLISH EDITION (1902) 
 
 WITH AMERICAN NOTES 
 
 By GEORGE E. BEERS 
 
 OF THE NEW HAVEN BAR; OF THE FACULTY OF THE YALE LAW SCHOOL 
 AND 
 
 ARTHUR L. CORBIN 
 
 OF THE FACULTY OF THE YALE LAW SCHOOL 
 
 BOSTON, MASS. 
 THE BOSTON BOOK COMPANY 
 
 Eafaj ^ublisfjcrs 
 1905
 
 Copyright, 1905 
 By The Boston Book Company 
 
 MJ U"^^^^ 
 
 \'^ nc;, 
 
 iM
 
 PREFATORY NOTE. 
 
 In the present edition tlie English text is pre- 
 served intact, the American notes following at the 
 end of each chapter. While the primary object has 
 been to furnish a working tool for the profession, it 
 is the hope of the American editor that it may be 
 said of the notes, as it has so long been said of the 
 
 "^ text, that much is embraced in them of vital human 
 
 -^ interest to both lawyer and layman. 
 
 While the work was originally undertaken by 
 Mr. Beers, he was prevented by professional en- 
 gagements from giving that continuity of attention 
 which labor of this character demands. He desires 
 to express his obligation to Mr. Arthur L. Corbin, 
 assistant professor in the Yale Law School, for his 
 effective assistance in the undertakino:. He is also 
 indebted for much aid and many kindnesses to Mr. 
 Charles F. Chamberlayne, who has placed a large 
 amount of material at his disposal and has ever 
 been ready with suggestions and encouragement. 
 
 G. E. B. 
 
 42 Church St., 
 
 New Haven, Conn., 
 June 22, 1905 
 
 o^
 
 PREFACE 
 
 TO THE FIFTH EDITION. 
 
 This work of my father's having met with 
 a favourable reception from the legal pro- 
 fession as well when originally published 
 in 1838 as upon the publication of later 
 editions in 1850 and 1862, I have thought 
 that a further edition, illustrated by later 
 cases, many of which have come under my 
 own personal observation, might fairly be 
 attempted. 
 
 Some modifications of the original text have 
 necessarily been introduced. The nature of 
 my professional life has brought me into 
 closer touch with many of the questions 
 discussed than could be the case with my 
 father, who was for many years a solicitor 
 in large practice at Birmingham. The text 
 has been most carefully revised and recon- 
 sidered throughout, but it is no more than 
 is due to him to say that in substantial
 
 VI PREFACE. 
 
 matters I have foiiiul very little to alter. I 
 did at one time contemplate indicating the 
 alterations by brackets, but I found the plan 
 jjractically impossible; and I am quite sure 
 that my father would not have objected to 
 the amalgamation of our respective parts in 
 the joint work. To him must always belong 
 the principal share of any credit this volume 
 may deserve. 
 
 The additional matter, therefore, which will 
 be found in this edition consists largely of 
 illustrations of the principles laid down in 
 the text drawn from cases of a later date 
 than that of the last edition. In some of 
 them I have been engaged as counsel, some 
 I have tried as a judge, some I have gathered 
 from the relation of friends upon whom I 
 could depend. The rest have been found for 
 me in the Old Bailey Sessions Papers, in the 
 fdes .of The Times or other contemporary 
 records. For the use made of them I am 
 responsible. 
 
 From the section at the end of the work 
 containing details of some remarkable cases 
 illustrative of the proving force of circum- 
 stantial evidence, one case [Reg. v. Smithy
 
 PREFACE. vii 
 
 VaruJiam, and Timms) has been omitted 
 which upon consideration did not appear to 
 be of sufficient interest to justify its retention. 
 On the other hand, three new cases will be 
 found which are perhaps as remarkable in 
 this connection as any which have ever been 
 tried : the Matlock PVill case, in which I was 
 counsel, the case of Howe v. Bur char dt and 
 anof/ier, which I tried, and the YarmoMth 
 Mnrder case. The Matlock IVill case and 
 Howe V. Burchardt are distinguished by one 
 very curious circumstance which I do not 
 remember to have seen or heard of in any 
 other instance. In each, the question in the 
 cause was whether certain documents were 
 forgeries. In each, it ultimately turned out 
 that a single stroke of the pen afforded an 
 absolutely infallible test of the genuineness 
 of the documents in question. In each case, 
 the indication had escaped the observation of 
 the experts, and I was fortunate enough to 
 discover it. 
 
 In the present edition both quotations 
 and references have been carefully revised. 
 
 The original work met with much recog- 
 nition abroad as well as at home, and it was
 
 Vlll PREFACE. 
 
 a source of natural gratification to my father 
 that it had brought him into personal relations 
 with some very eminent juridical writers — 
 amongst others, with Dr. Mittermaier in 
 Germany, and with Professor Greenlcaf in 
 the United States, from both of whom I 
 found interesting letters amongst my father's 
 papers after his death. 
 
 In the United States an edition was 
 published during the author's lifetime, and 
 another, if not more than one, after his death. 
 I possess a reprint of the edition of 1862, 
 published in Philadelphia in 1881, which is 
 styled " Sixth American from the Fourth 
 London Edition." Literary property in 
 books by English authors had at that time 
 no recognition in the United States. It is 
 still recognized only on terms too onerous 
 to make it worth while, with a work of 
 limited circulation, to claim the protection 
 of American law. Arrangements have been 
 made, however, with a Boston firm, which, 
 if they give no appreciable pecuniary advan- 
 tage to myself as the owner of the English 
 copyright, at least secure that an edition shall 
 be published in the United States identical in 
 matter v./ith the English edition.
 
 PREFACE. ix 
 
 There is some reason for a wish that this 
 should be possible. Amongst the American 
 admirers of the edition published in 1862 — 
 if admiration may be fairly inferred from 
 wholesale appropriation — is a gentleman 
 who published in 1896, at Philadelphia, a 
 volume entitled '' A Treatise on the Law 
 of Circumstantial Evidence, illustrated by 
 numerous cases, by Arthur P. Will, of the 
 Chicago Bar." Mr. Will's book contains 
 a considerable amount of original matter — ■ 
 perhaps about half of the volume is his own 
 — and is especially rich in American cases. 
 In a short preface Mr. Will says : 
 
 ** The writer, in presenting to the profession a 
 volume thoroughly American, begs to acknowledge 
 his indebtedness to the essay of Mr. William Wills, 
 the last edition of which was prepared by his son, 
 Judge Alfred Wills. It has been thought wisest 
 to follow Mr. W^ills's plan in its main divisions, 
 and to preserve much that is valuable in his 
 scientific discussion concerning the phenomena 
 on which the rules of circumstantial evidence 
 are based." 
 
 The edition of 1862 which is here referred 
 to contains 315 pages. Of these, six con- 
 stitute a section on "Statutory Presump- 
 tions," which deals exclusively with English
 
 X PREFACE. 
 
 statute law, and therefore was not likely to 
 be useriil to Mr. Will. Of the remaining 
 309 jxi^es, Mr. Will has appropriated all 
 but an insignificant fraction (a). The very 
 divisions are in most cases preserved, the 
 only difference being that they are often 
 called "chapters" instead of sections. The 
 titles indicating the subject-matter of the 
 divisions have rarely been altered. Clerical 
 and accidental errors have remained un- 
 corrected, except in the account of Pahiiers 
 case. In the edition of 1862 there was a 
 confusion in the dates, one Monday being 
 described as both the i8th and the 20th 
 November, and one or two other dates being 
 wrong. Mr. Will has made corrections by 
 which they accord with one another. Unfor- 
 tunately, the corrections are not themselves 
 correct. Mr. Will did not consult the 
 almanac of 1855. If there is any more 
 trace of original work in the copying (other 
 than a few^ purely verbal alterations) I have 
 failed to find it out. 
 
 {a) Desiring to be accurate I have marked in the margins 
 of a copy of the edition of 1862 the pages of Mr. Will's 
 book, where the text of my father's work will be found, 
 and the extent of the respective passages appropriated. 
 Only 365 lines remain unmarked.
 
 PREFACE. XI 
 
 I have only to add that should Mr. Will 
 be disposed to make a similar use of the 
 present edition, I hope he will remember 
 that this preface is as much at his disposal 
 as any other part of the book. 
 
 I am greatly indebted to Dr. Dupre, 
 F.R.S., so well knowm in connection with 
 medical jurisprudence, for his kindness in 
 revising the notice at pp. 144 — 146 of the 
 acknowledged methods of detecting blood- 
 stains, and of the extent to which discrimina- 
 tion between different kinds of blood has 
 hitherto been considered possible. A note at 
 the end of the volume by my son. Dr. Wills, 
 contains an interesting summary of the latest 
 discoveries of science relating to the examina- 
 tion of bloodstains and their identification with 
 the blood of different animals — an achieve- 
 ment which has up till very lately been 
 deemed impossible. The methods indicated 
 have certainly not as yet been employed in 
 judicial investigations in this country, and 
 whether they are really to be depended upon 
 in practice remains to be seen. The sub- 
 ject is a very important one, and should the 
 processes indicated prove to be reliable, a 
 source of difficulty in some cases of murder
 
 j,jj PREFACE. 
 
 will be removed, and an addition made to 
 the rcs(nirccs of science which will at times 
 be of the i^reatest assistance, both in the 
 detection of crime and in the protection of 
 innocence. 
 
 I have in conclusion to express my 
 obligations to my nephew, Mr. Wm. Wills, 
 of the Midland Circuit, from whom I 
 received the greatest assistance in arrang- 
 ing the plan of the new edition and the 
 selection of additional matter, and to Mr. 
 Thornton Lawes, of the Western Circuit, who 
 has been indefatigable in helping me, not 
 merely in abstracting cases and bringing 
 references to the statute law and to deci- 
 sions up to date, but also in securing 
 uniformity in' methods of citation and in the 
 necessary though tedious work of correcting 
 the proofs. The excellent index is also his. 
 I have also to thank Mr. H. O. Buckle for 
 a prolonged and careful search through the 
 files of The Times for many years back. 
 It is interesting to be able to add that after 
 carrying his rifle as a member of the Inns of 
 Court Volunteer Corps through the earlier 
 phases of the South African war to Pretoria, 
 he has been appointed to a judicial office at
 
 PREFACE. Xlll 
 
 Johannesburg, where I am sure he will do 
 good service to the Colony in administering 
 justice as he did to his country in helping 
 to fight her battles. 
 
 The Lord Chief Justice of England has 
 kindly revised for me the account of a great 
 trial over which he presided, Rex v. Bennett, 
 generally known as the Yarmouth Mttrder 
 case. 
 
 ALFRED WILLS. 
 
 Royal Courts of Justicb, 
 July, 190a.
 
 EXTRACT FROM THE PREFACE 
 
 TO THE ORIGINAL EDITION OF 1838. 
 
 It has not always been practicable to support the 
 statement of cases by reference to books of recog- 
 nized authority, or of an equal degree of credit ; 
 but discrimination has uniformly been exercised in 
 the adoption of such statements : and they have 
 generally been verified by comparison with con- 
 temporaneous and independent accounts. A like 
 discretion has been exercised in the rejection of 
 some generally received cases of circumstantial 
 evidence, the authenticity of which does not appear 
 to be sufficiently established. 
 
 W. W. 
 
 Edgbaston, near BirminghaMj 
 February, 1838
 
 THE PRINCIPLES 
 
 OF 
 
 CIRCUMSTANTIAL EVIDENCE. 
 
 CHAPTER I. 
 
 EVIDENCE IN GENERAL, 
 
 Section r. 
 
 THE NATURE OF EVIDENCE. 
 
 It will greatly conduce to the formation of clear 
 and correct notions on the subject of Circumstantial 
 Evidence, to take a brief introductory view of the 
 nature of evidence in general, of some of its various 
 kinds, and of the nature of the assurance which each 
 of them is calculated to produce. 
 
 The great object of all intellectual research is the 
 discovery of truth, which is either objective and 
 ABSOLUTE, in which sense it is synonymous with 
 being or existence, or subjective and relative, in 
 which acceptation it expresses the conformity of our 
 ideas and mental convictions with the nature and 
 reality of events and things. 
 
 C.E. B
 
 2 EVIDENCE IN GENERAL. 
 
 The Junc.MKN r is tliat faculty of the mind wliich 
 is principally concerned in the investigation and 
 acquisition of truth ; and its exercise is tlie intel- 
 lectual act by which one thing is perceived and 
 affirmed of another, or the reverse. 
 
 Every conclusion of the judgment, whatever may 
 be its subject, is the result of evidence, — a word 
 which (derived from two Latin words signifying to 
 see out, to trace out by sight), by a natural transition 
 is applied to denote the means by which any alleged 
 matter of fact, the truth of which is submitted to 
 investigation, is established or disproved. 
 
 The term proof is often confounded with evidence, 
 and applied to denote the viediJini of proof, whereas 
 in strictness it marks merely the effect of evidence. 
 When the result of evidence is undoubting assent to 
 the certainty of the event or proposition which is the 
 subject-matter of inquiry, such event or proposition 
 is said to be proved; and, according to the nature of 
 the evidence on which such conclusion is grounded, 
 it is either knoivn or believed to be true. Our judg- 
 ments, then, are the consequence of proof in its 
 secondary sense ; and proof is the final result of that 
 quantity of appropriate evidence which produces 
 assurance and certainty ; evidence therefore differs 
 from proof, as cause from effect. 
 
 It is unnecessary, in relation to the subject of this 
 section, to mention the inferior degrees of assurance, 
 which will be more appropriately noticed in another 
 place.
 
 the various kinds of evidence. 3 
 
 Section 2. 
 
 the various kinds of evidence. 
 
 Truth is either abstract and necessary, or probable 
 and contingent ; and each of these kinds of truth is 
 discoverable by appropriate, but necessarily different 
 kinds of evidence. This classification, however, is 
 not founded in any essential dift'erence in the nature 
 of truths themselves, and has reference merely to 
 our imperfect capacity and ability of perceiving" 
 them ; since to an Infinite Intelligence nothing 
 which is the object of knowledge can be probable, 
 and everything must be perceived absolutely and 
 really as it is {a). 
 
 In many instances the correspondence of our 
 ideas with realities is perceived instantaneously, 
 and without any conscious intermediate process of 
 reasoning, in which cases the judgment is said to be 
 INTUITIVE, from a word signifying to look at ; and 
 the evidence on which it is founded is also denomi- 
 nated intuitive ; though it would perhaps be more 
 correct to use that word as descriptive of the nature 
 of the mental operation, rather than of the kind of 
 evidence on which it rests. 
 
 Intuition is the foundation of demonstration, 
 which consists of a series of steps severally re- 
 solvable into some intuitive truth. Demonstration 
 concerns only necessary and immutable truth ; and 
 its first principles are definitions, which exclude all 
 
 {a) Butler's Analogy, Introduction. 
 
 B 2
 
 4 EVIDENCE IN GENERAL. 
 
 ambio^uities of language, and lead to infallibly 
 certain conclusions (d). 
 
 But the subjects which admit of the certainty of 
 intuition and demonstration are comparatively few. 
 Innumerable truths, the knowledge of which is 
 indispensable to happiness, if not to existence, 
 depend upon evidence of a totally different kind, 
 and admit of no other guide than our own observation 
 and experience, or the testimony of our fellow-men. 
 Such truths involve questions of fact or of actual 
 existence, which, as they are not of a necessary nature, 
 may or may not have existed, without involving any 
 contradiction, and as to which our reasonings and 
 deductions may be erroneous. Such evidence is 
 called MORAL evidence ; probably because its prin- 
 cipal application is to suljects directly or remotely 
 connected with moral conduct and relations. 
 
 Of the various kinds of moral evidence, that of 
 TESTIMONY is the most comprehensive and important 
 in its relation to human concerns ; so extensive in 
 its application, that to enter on the subject of testi- 
 mony at large, would be to treat of the conduct of 
 the understanding in relation to the greater portion 
 of human affairs. The design of this essay is 
 limited to the consideration of some of the principal 
 rules and doctrines peculiar to circumstantial evi- 
 dence as applicable to criminal jurisprudence, — one 
 of the leading heads under which philosophical 
 and juridical writers consider the subject of 
 
 {b) Stewart's Elements of the Philosophy of the Human Mind, 
 vol. ii. ch. ii. s. 3.
 
 NATURE OF THE ASSURANCE PRODUCED. 5 
 
 testimonial evidence. Nor is it proposed to treat, 
 except cursorily and incidentally, of documentary 
 circumstantial evidence ; a subject which, however 
 interesting in itself, is applicable principally to dis- 
 cussions upon the genuineness of historical and 
 other writings ; and such cases of this description as 
 occasionally happen in the concerns of common life, 
 are referable to general principles, which equally 
 apply to circumstantial evidence of every kind. 
 
 Considering how many of our most momentous 
 determinations are grounded upon circumstantial 
 evidence, and how important it is that they should 
 be correctly formed, the subject is one of deep 
 interest and moment. It would be most erroneous 
 to conclude that, because it is illustrated principally 
 by forensic occurrences, it especially concerns the 
 business or the members of a particular profession. 
 Such events are amoncrst the most interestino- ocCur- 
 rences of social life ; the subject relates to an intel- 
 lectual process, called into exercise in almost every 
 branch of human speculation and research. 
 
 Section 3. 
 
 nature of the assurance produced by different 
 kinds of evidence. 
 
 In investigations of every kind it is essential that 
 a correct estimate be made, of the kind and degree 
 of assurance of which the subject admits. 
 
 Since the evidence of demonstration relates to
 
 6 EVIDENCE IN GENERAL. 
 
 necessary trulhs (as to which the supposition of the 
 contrar)' involves not merely what is not and cannot 
 be true, but what is also absurd), and since moral 
 EVIDKNCK is the basis of contingent or probable truth 
 merel)-, it follows that the convictions which these 
 various kinds of evidence are calculated to produce 
 must be of very different natures. In the former case 
 ABSOLUTE CERTITUDE is the result ; to which moral 
 CERTAINTY, the highest degree of assurance of which 
 truths of the latter class admit, is necessarily inferior. 
 
 Unlike the assent, which is the inevitable result 
 of mathematical reasoning, belief in the truth of 
 events may be of various degrees, from moral cer- 
 tainty, the highest, to that of mere probability, the 
 lowest ; between which extremes there are innumer- 
 able degrees and shades of conviction, which the 
 latency of mental operations and the unavoidable 
 imperfections of language render it impossible to 
 define or express. In subjects of moral science, the 
 want of appropriate words, and the occasional appli- 
 cation of the same word to denote different thinors, 
 have given occasion to much obscurity and confusion 
 both of idea and expression ; of which a remarkable 
 exemplification is presented in the words probability 
 and certainty. 
 
 The general meaning of the word probability is 
 likeness or similarity to some other truth, event, or 
 thing (r). Sometimes the w^ord probability is used 
 
 (c) Butler's Analogy, Introduction ; Locke's Essay concerning 
 Human Understanding, b. iv. ch. xv. ; Cic. De Inventione Rhetorica, 
 lib. I. c. 47.
 
 NATURE OF THE ASSURANCE PRODUCED. 7 
 
 to express the preponderance of the evidence or 
 arguments, in favour of the existence of a particular 
 event or proposition, or adverse to it ; and some- 
 times as assertive of the abstract and intrinsic 
 credibiHty of a fact or event (<'/). 
 
 In its former sense the word probability is applied 
 as well to certain mathematical subjects, as to ques- 
 tions dependent upon moral evidence, and expresses 
 the ratio of the favourable cases to all the possible 
 cases by which an event may happen or fail ; and it 
 is represented by a fraction, the numerator of which 
 is the sum of the favourable cases, and the denomi- 
 nator the whole number of possible cases, certainty 
 being represented by unity. If the number of 
 chances for the happening of the event be o, and 
 the event be consequently impossible, the expres- 
 sion for that chance will be o ; and so, if the 
 number of chances of the failure of the event be 
 o, and the event be therefore certain, the expres- 
 sion for the chance of failure will also be o. 
 If m + n be the whole number of cases, vi the 
 favourable and ;/ the unfavourable ones, the proba- 
 bility of the event is i?i : vi + n. It follows, that if 
 there be an equality of chances for the happening or 
 the failing of an event, the fraction expressive of the 
 probability is ^, the mean between certainty and 
 impossibility [c) ; and probability therefore includes 
 the whole rano^e between those extremes. 
 
 {(f) The latter sense, however, scarcely differs in character from the 
 former ; inasmuch as its real meaning is that the event or fact in 
 question is consonant with other accepted facts. 
 
 {e) Kirwan's Logic, part iii. ch. vii. s. I.
 
 8 EVIDENCE IN GENERAL. 
 
 The terms certainty and probability are how- 
 ever essentially different in meaninrr as applied to 
 moral evidence, from what they import in a mathe- 
 matical sense ; inasmuch as the elements of moral 
 certainty and moral probability, notwithstanding the 
 ingenious arguments which have been urged to the 
 contrary, appear to be incapable of numerical expres- 
 sion, and because it is not possible to reduce to a 
 number all the chances for or against the occurrence 
 of any particular event. 
 
 The expression moral probability, though liable 
 to objection on account of its deficiency in precision, 
 is for want of one more definite and appropriate, of 
 frequent and necessary use ; nor will its application 
 lead to mistake, if it be remembered, that it denotes 
 only the preponderance of probability, resulting from 
 the comparison and estimate of moral evidence, and 
 that if this were capable of being expressed with 
 exactness, it would lose its essential characteristic 
 and possess the certainty of demonstration. 
 
 The preceding strictures equally apply to the 
 term moral certainty, or its equivalent moral con- 
 viction, which must be understood, not as importing 
 deficiency in the proof, but only as descriptive of the 
 kind ot certainty which is attainable by means of 
 moral evidence ; and it is that full and complete 
 assurance which induces a sound mind to act without 
 doubt upon the conclusions to which it naturally and 
 reasonably leads {f\ 
 
 (/) Stewart's Elements of the Philosophy of the Human Mind, 
 vol. ii. ch. ii. s. 4 ; Encyclopaedia Brit., art. Metaphysic. part i.
 
 NATURE OF THE ASSURANCE PRODUCED. Q 
 
 It has been justly and powerfully remarked by a 
 noble and learned writer, that " the degree of excel- 
 lence and of strength to which testimony may rise 
 seems almost indefinite. There is hardly any 
 cogency which it is not capable by possible supposi- 
 tion of attaining. The endless multiplication of 
 witnesses — the unbounded variety of their habits 
 of thinking, their prejudices, their interests — afford 
 the means of conceiving the force of their testi- 
 mony augmented ad infinitum^ because these 
 circumstances afford the means of diminishing 
 indefinitely the chances of their being all mistaken, 
 all misled, or all combining to deceive us" (^). But 
 if evidence leave reasonable ground for doubt, the 
 conclusion cannot be morally certain, however 
 great may be the preponderance of probability in 
 its favour. 
 
 Some mathematical writers have propounded 
 numerical fractions for expressing moral certainty; 
 which, as might have been expected, have been of 
 very different values. But the nature of the subject 
 precludes the possibility of reducing to the form of 
 arithmetical notation the subtle, shifting, and evan- 
 escent elements of moral assurance, or of bringing 
 to quantitative comparison, things so inherently 
 different as certainty and probability. 
 
 Other writers have given, in a more general 
 manner, mathematical form to moral reasonings and 
 judgments ; but it is questionable if they have done 
 so with any useful result, however they may have 
 
 (^) Lord Brougham's Discourse on Natural Theology, Note V.
 
 10 EVIDENCE IN GENERAL. 
 
 shown their own ingenuity {h). Though it is true 
 that some very important deductions from the 
 doctrine of chances are appHcable to events de- 
 pendent upon the duration of human hfe, such as 
 the expectation of hfe, the law of mortahty, the 
 vahie of annuities and similar contingencies, and a 
 variety of other matters with respect to which 
 definite statistical information is obtainable, yet it 
 is obvious, that all such conclusions depend upon 
 circumstances, which, notwithstanding that to the 
 unreflecting observer they appear casual, uncertain, 
 and irreducible to principle, unlike moral facts and 
 reasonings in general, are really based upon and 
 deducible from numerical elements. 
 
 A learned writer, whose writings, in despite of his 
 eccentricities of matter and of style, have exercised 
 great influence in awakening the spirit of judicial 
 reform, asks (e), " Does justice require less precision 
 than chemistry ? " The truth is, that the precision 
 attainable in the one case is of a nature of which 
 the other does not admit. It would be absurd to 
 require the proof of an historic event, by the same 
 kind of evidence and reasoning as that which 
 establishes the equality of triangles upon equal 
 bases and between the same parallels, or that the 
 lahcs rectmn in an ellipse is a third proportional to 
 the major and minor axes. 
 
 {h) See Kirwan's Logic, part iii. ch. vii. s. 21 ; Whately's Logic, 
 b. iv. ch. ii. s. i. 
 
 (z) Bentham's Traite des Preuves Judiciaires (par Dumont), b. i. 
 ch. xvii. Bentham originally wrote, " Has not Justice its use as well 
 as gas.-"' See reference note (1), t'n/ra. Mackintosh's Dissertation 
 on the Progress of Ethical Philosophy, 290.
 
 NATURE OF THE ASSURANCE PRODUCED. II 
 
 This conscript father of legal reforms {k) has 
 himself supplied a memorable illustration of the 
 futility of his own inquiry. He has proposed a 
 scale for measurino- the degrees of belief, with a 
 positive and a negative side, each divided into ten 
 degrees, respectively affirming and denying the 
 same fact, zero denoting the absence of belief; 
 and the witness is to be asked what deeree ex- 
 presses his belief most correctly. With characteristic 
 ardour, the venerable author gravely argues that 
 this instrument could be employed without confu- 
 sion, difficulty, or inconvenience (/). But man must 
 become wiser and better before the mass of his 
 species can be entrusted with the use of such a 
 moral gauge, from which the unassuming and the 
 wise would shrink, while it would be eagerly grasped 
 by the conceited, the interested and the rash. 
 
 But though a process strictly mathematical cannot 
 be applied to estimate the effect of moral evidence, 
 a proceeding somewhat analogous is observed in the 
 examination of a group of facts adduced as grounds 
 for inferring the existence of some other fact. 
 Althouoh an exact value cannot be assiorned to the 
 testimonial evidence for or against a matter of dis- 
 puted fact, the separate testimony of each of the 
 witnesses has yet a more or less determinate relative 
 value, depending upon considerations which it would 
 be foreign to the present subject to enumerate. On 
 
 (/&) I Hoffman's Course of Legal Study, 364. 
 
 (/) Bentham's Rationale of Judicial Ev., b. i. ch. vi. s. I, and see in 
 Kirwan's Logic, part iii. ch. vii. s. 21, a proposed scale of testimonial 
 probability.
 
 12 EVIDENCE IN GENERAL. 
 
 one side of the equation are mentally collected all 
 the facts and circumstances which have an affirmative 
 value ; and on the other, all those which either lead 
 to an opposite inference, or tend to diminish the 
 weight, or to show the non-relevancy, of all or any 
 of the circumstances which have been put into the 
 opposite scale. The value of each separate portion 
 of the evidence is separately estimated, and as in 
 algebraic addition, the opposite quantities, positive 
 and negative, are united, and the balance of proba- 
 bilities is what remains as the ground of human 
 belief and judgment [ni). 
 
 But, as has been already intimated, there is 
 another sense in which the word probability is 
 often used, and in which it denotes credibility or 
 INTERNAL PROBABILITY, and cxprcsscs our judgment 
 of the accordance or similarity of events with 
 which we become acquainted, through the 
 medium of testimony with facts previously known 
 by experience (;^). 
 
 The results of experience are, expressly or im- 
 pliedly, assumed as the standard of credibility in 
 all questions dependent upon moral evidence. By 
 means of the senses and of our own consciousness 
 we become acquainted with external nature, and 
 with the characteristics and properties of physical 
 
 (i)i) See some remarks on this passage in a learned paper " On the 
 Measure of the Force of Testimony in Cases of Legal Evidence," by 
 John Tozer, Esq., M.A., Transactions of the Cambridge Philosophical 
 Society, vol. iii. part li. (Cambridge, 1844), and 36 Phil. Mag. , 3rd ser, 
 78. 
 
 (/z) Abercrombie on the Intellectual Powers, part ii. s. 3.
 
 NATURE OF THE ASSURANCE PRODUCED. I3 
 
 things and moral being-s, which are then made the 
 subjects of memory, reflection, and other intellectual 
 operations ; and thus ultimately the mind is led to 
 the recognition of the principle of causality and other 
 necessary truths, which become the basis and standard 
 of comparison in similar and analogous circumstances. 
 The groundwork of our reasoning is an instinctive 
 and inevitable belief in the truthfulness and legiti- 
 macy of our own faculties and in the permanence of 
 the order of external nature, as also in the existence 
 of moral causes, which operate with an unvarying 
 uniformity, not inferior to the stability of physical 
 laws ; though, relatively to our feeble and limited 
 powers of observation and comprehension, and on 
 account of the latency, subtlety, and fugitiveness 
 of mental operations, and of the infinite diversities 
 of individual men, there is apparently more of 
 uncertainty and confusion in moral than in material 
 phenomena (<?). 
 
 Experience comprehends not merely the facts and 
 deductions of personal observation, but the observa- 
 tions of mankind at large of every age and country. 
 It would be absurd to disbelieve and reject as in- 
 credible the relations of events, because such events 
 have not occurred within the ranofe of individual 
 experience. We may remember the unreasonable 
 incredulity of the King of Siam, who when the Dutch 
 ambassador told him that in his country the water 
 in cold weather became so hard that men walked 
 upon it, and that it would even bear an elephant, 
 
 {0) Hampden's Lectures on Moral Philosophy, 150; Abercrombie's 
 Philosophy of the Moral Feelings, Prelim. Obs. s. ii.
 
 14 EVIDENCE IN GENERAL. 
 
 replied, " Hitherto I have believed the strange things 
 you have told me, because I looked upon you as a 
 sober, fair man, but now I am sure you lie " (/ ). 
 
 By experience facts or events of the same character 
 are referred to causes of the same kind ; by analogy 
 facts and events similar in some, but not in all of their 
 particulars to other facts and occurrences, are con- 
 cluded to have been produced by a similar cause : 
 so that analogy vastly exceeds in its range the limits 
 of experience in its widest latitude, though their 
 boundaries may sometimes be coincident and some- 
 times indistinguishable. It has been profoundly 
 remarked that " in whatever manner the province of 
 experience, strictly so called, comes to be thus en- 
 larged, it is perfectly manifest that, without some 
 provision for this purpose, the principles of our con- 
 stitution would not have been duly adjusted to the 
 scene in which we have to act. Were v/e not so 
 formed as eagerly to seize the resembling features 
 of different things and different events, and to extend 
 our conclusions from the individual to the species, 
 life would elapse before we had acquired the first 
 rudiments of that knowledge which is essential to 
 our animal existence " [q). Every branch of know- 
 ledge presents instructive examples of the extent to 
 which this mode of reasoning may be securely carried. 
 Newton, from having observed that the refractive 
 forces of different bodies follow the ratio of their 
 
 {p ) Locke's Essay concerning Human Understanding, b. iv. ch. xv. 
 s. 5. 
 
 {g) Stewart's Elements of the Philosophy of the Human Mind, 
 vol. ii. ch. ii. s. iv.
 
 NATURE OF THE ASSURANCE PRODUCED. 15 
 
 densities, was led to predict the combustibility of the 
 diamond ages before the mechanical aids of science 
 were capable of verifying his prediction ; nor is the 
 sagacity of the conjecture the less striking, because 
 this correspondence has been discovered not to be 
 without exception (r). The scientific observer, from 
 the inspection of shapeless fragments, which have 
 mouldered under the suns and storms of ages, con- 
 structs a model of the original in its primitive mag- 
 nificence and symmetry. A profound knowledge of 
 comparative anatomy enabled the immortal Cuvier, 
 from a single fossil bone, to describe the structure 
 and habits of many of the extinct animals of the 
 antediluvian world. In like manner an enlightened 
 knowledge of human nature often enables us, on the 
 foundation of apparently slight circumstances, to 
 follow the tortuous windings of crime, and ultimately 
 to discover its guilty author, as infallibly as the 
 hunter is conducted by the track to his game. 
 
 The following pertinent and instructive observa- 
 tions may advantageously close this part of our sub- 
 ject, comprehending, as they do, everything which 
 can be usefully adduced in illustration of the necessity 
 and value of the principle of analogy. " In all 
 reasonings concerning human life we are obliged to 
 depend on analogy, if it were only from that uncer- 
 tainty, and almost suspension of judgment, with 
 
 (r) The perturbations of Uranus led astronomers, by a process 
 of inference from the known interaction of ascertained planets upon 
 one another, to believe in the existence of a planet outside the then 
 known solar system long before the place of Neptune was calculated 
 and itself discovered.
 
 l6 EVIDENCE IN GENERAL. 
 
 which we must hold our conclusions. We can 
 seldom obtain that number of instances wliich is 
 requisite here to establish an inference indisputably. 
 The conduct of persons or of parties may have been 
 attended by certain antecedents and certain results 
 in the examples before us ; still the state of the case 
 may be owing, not so much to that conduct, as to 
 other causes, which are shut out of our view, when 
 our attention is fixed on the particular examples 
 adduced for the purpose of the inference. We must 
 thus be strictly on our guard against transferring to 
 other cases anything merely contingent and peculiar 
 to the instances on which our reasoning is founded. 
 And this is what analogical reasoning requires and 
 enables us to do. If rightly pursued it is employed 
 at once, both in generalising and discriminating ; in 
 the acute perception at once of points of agreement 
 and points of difference. The acme of the philo- 
 sophical power is displayed in the perfect co-operation 
 of these two opposite proceedings. We must study to 
 combine in such a way as not to merge real differ- 
 ences ; and so to distinguish as not to divert the eye 
 from the real correspondence" (s). 
 
 It may be objected, that the minds of men are so 
 differently constituted, and so much influenced by 
 differences of experience and culture, that the same 
 evidence may produce in different individuals very 
 different degrees of belief; that one man may 
 unhesitatingly believe an alleged fact, upon evidence 
 which will not in any degree sway the mind of 
 another. It must be admitted that moral certainty 
 
 (s) Hampden's Lectures on Moral Philosophy, 178.
 
 NATURE OF THE ASSURANCE PRODUCED. I7 
 
 has not one fixed and unvarying standard, the same 
 for every individual ; that scepticism and creduHty 
 are modifications of the same principle, and that to 
 a certain extent this objection is grounded in fact ; 
 but, nevertheless, the psychological considerations 
 which it involves have but little alliance with the 
 present subject ; the argument, if pushed to its 
 extreme, would go to introduce universal doubt and 
 distrust, and to destroy all confidence in human 
 judgment founded upon moral evidence. It is as 
 impossible to reduce men's minds to the same 
 standard, as it is to bring their bodies to the same 
 dimensions ; but in the one case, as well as in the 
 other, there is a general agreement and similarity, 
 any wide departure from which is instantly perceived 
 to be eccentric and extravagant. The question is, 
 not what may be \\\^ possible effect of evidence upon 
 minds pectLliarly constructed, but what ought to be 
 its fair result with men, such as the generality of 
 civilized men are. 
 
 It is of no moment, in relation to criminal juris- 
 prudence, that exact expression cannot be given to 
 the inferior deofrees of belief. The doctrine of 
 chances, and nice calculations of probabilities, cannot, 
 except in a few cases, and then only in a very general 
 and abstract way, be applied to human actions, which 
 are essentially unlike, and dependent upon peculiari- 
 ties of persons and circumstances which render it 
 impossible to assign to them a precise value, or to 
 compare them with a common numeral standard ; 
 nor are they capable in any degree, or under any 
 circumstances, of being applied to actions which 
 
 C.E. C
 
 l8 EVIDENCE IN GENERAL. 
 
 infer Ic^-al responsibility. In the common affairs of 
 life, men are frequently obliged, from necessity and 
 duty, to act upon the lowest degree of belief ; and, 
 as Locke justly observes, " He that will not stir, till 
 he infallibly knows the business he goes about will 
 succeed, will have little else to do but to sit still and 
 perish " (/). But in such cases our judgments com- 
 monly concern ourselves, and our own motives, 
 duties, and interests ; while in the administration of 
 penal justice, the magistrate is called upon to apply 
 to the conduct of others, a rule of action applicable 
 to a given state of facts, where external and some- 
 times ambieuous indicia alone constitute the grounds 
 of judgment. In the application of every such rule, 
 the certainty of the facts is presupposed, and is 
 its only foundation and vindication ; and upon any 
 lower degree of assurance, its application would be 
 arbitrary and indefensible. 
 
 {jt) Essay concerning Human Understanding, b. iv. ch. xiv. s. I.
 
 AMERICAN NOTES. 
 
 [Note to Chapter I.] 
 
 " Evidence " Defined. 
 
 "Evidence" means — " i. Statements made by witnesses in 
 court under a legal sanction, in relation to matters of fact under 
 inquiry ; such statements are called evidence. 2. Documents 
 produced for the inspection of the Court or judge ; such docu- 
 ments are called documentary evidence." Stephen's Dig. Evid. 
 Art. I. This author wholly ignores the distinction between direct 
 and circumstantial evidence, treating the subject mainly from the 
 standpoint of relevancy alone. 
 
 Mr. Thayer defines the term " evidence " as " any matter of fact 
 which is furnished to a legal tribunal," regarding the definition of 
 Stephen as too narrow in that it excludes matters of fact demon- 
 strated to the senses of the judge (Cases on Evidence, p. 2). An 
 instance of evidence not included in the definition of Stephen, but 
 embraced by Mr. Thayer's definition, occurs in Brown v. Foster, 
 113 Mass. 137, where, in a controversy over the fit of a coat, the 
 coat is put on. 
 
 " The word ' evidence,' in legal acceptation, includes all means 
 by which any alleged matter of fact, the truth of which is sub- 
 mitted to investigation, is established or disproved." Greenleaf 
 on Evid. § i. 
 
 Testimony. 
 
 The term " testimony " refers to evidence given by witnesses and 
 excludes documentary evidence. Dibble v. Dimmick, 143 N. Y. 
 
 549' 554- 
 
 Positive and Negative Evidence. 
 
 The evidence of one who did not hear a sound for which 
 he was listening is positive. L. S. & M. S. R. R. Co. v. Schade, 
 15 Ohio Circ. Ct. 424, 57 Ohio St. 650 ; C, C, C. & St. L. Ry. v.
 
 l8^ AMERICAN NOTES. 
 
 Richardson, lo Circ. Dec. 326, 19 Ohio Circ. Ct. 3S5 (locomotive 
 bell or whistle). 
 
 Positive evidence is generally superior to ncj2;ative. I5oyd v. 
 Sell, Tappan (Ohio), 43 ; Toledo Consol. St. Ry. v. Roehner, 
 6 Circ. Dec. (Ohio) 706, 9 Ohio Circ. Ct. 702, 57 Ohio St. 
 667. 
 
 On the question of notoriety, if witnesses have equal oppor- 
 tunities for knowing the facts negative evidence is entitled to full 
 weight. Mc.Arthur z/. Phoebus, 2 Ohio, 415, 426. 
 
 Positive evidence of a fact is entitled to greater weight than 
 negative evidence against it. Urias v. Penn. R. Co., 152 Pa. 326; 
 Floyd V. Phila. & R. R. Co., 162 Pa. 29. 
 
 Relei'ancy. 
 
 "Facts not otlierwise relevant are relevant — (i) If they are 
 inconsistent with any fact in issue or relevant fact ; (2) If by 
 themselves, or in connection with otlier facts, they make the ex- 
 istence or non-existence of any fact in issue, or relevant fact, highly 
 probable or improbable." Stephen's Dig. Evid., Appendix, Note i. 
 This rule would justify the admission of circimistantial evidence 
 of facts from which the facts in issue are to be inferred. 
 
 In earlier editions Stephen had defined relevant facts as follows: 
 '•' Facts, whether in issue or not, are relevant to each other when 
 one is, or probably may have been — the cause of the other; the 
 effect of the other ; an effect of the same cause ; a cause of the 
 same effect ; or when the one shows that the other must or cannot 
 have occurred, or probably does or did exist, or not ; or that 
 any other fact does or did exist, or not, which in the common 
 course of events would either have caused or have been caused 
 by the other." 
 
 A fact may be admissible in connection with other facts forming 
 a chain, even though standing alone it would afford no reasonable 
 ground for inference. 
 
 " If it would be relevant when taken in connection with other 
 facts, it ought to be proposed in connection with those facts, and 
 an offer to follow the evidence proposed with proof of those facts 
 at the proper times. Dislocated circumstances may doubtless be 
 given in evidence ; particularly if there be no objection to the order 
 of time; but the proposal of the evidence must contain in itself, by
 
 AMERICAN NOTES. iS c 
 
 reference to something that has preceded it, or that is to follow 
 information of the manner in which the evidence is to be legiti- 
 mately operative." Weidler v. Bank, ii S. & R. (Pa.) 139. 
 
 " Whatever is not of a nature to beget mental conviction upon 
 the point under inquiry is irrelevant evidence and should not be 
 admitted ; whatever is of that nature should be admitted. And of 
 this moral quality of proofs the presiding judge is the arbiter; he 
 admits and rejects, under our sujjervision, according to his esti- 
 mate (not of the effect of the evidence, for that is for the jury), but 
 according to his estimate of the fitness of the evidence to conduct 
 human reason to a sound conclusion on the point in question."' 
 Stauffer v. Young, 39 Pa. St. 460. 
 
 "Conclusive Proof Defined. 
 
 "Conclusive Proof" means " evidence upon the production of 
 which the judge is bound by law to regard some facts as proved, 
 and to exclude evidence intended to disprove it." Stephen's Dig. 
 Evid. Art. i. 
 
 All Facts prima facie Admissible. 
 
 "Unless excluded by "some rule or principle of law, all that is 
 logically probative is admissible." Thayer's Preliminary Treatise 
 on Evidence, p. 265. 
 
 Nature of the Assurance Produced by Different Kinds of 
 Evidence. 
 
 Eiiidence need not be conclusive. — One may testify as to spots 
 of blood on the clothes of a prisoner accused of murder with- 
 out calling for a chemical analysis. People v. Fernandez, 35 
 N. Y. 49- 
 
 Testimony is not to be ruled out as irrelevant because it does 
 not at once establish the whole issue. If not followed up by con- 
 necting proof, the adverse party niay request the Court to direct 
 the jury to disregard it. Murphy v. Boker, 3 Rob. (N. Y.) i, 
 28 How. Pr, 251 ; Polhamus 7/. Moser, 7 Rob. (N. Y.) 489. 
 
 Inferences may be drawn by the jury if they be reasonable and 
 probable ; they need not be necessary inferences. Gannon v. 
 People, 127 111. 507, II Am. St. Rep. 147.
 
 l8^ AMERICAN NOTES. 
 
 Test of Admissibilify of Circumstances. 
 
 " It is sometimes difficult to mark with precision the line which 
 separates the limits of just and reasonable inference from those of 
 mere conjecture or surmise. This arises necessarily from the na- 
 ture of indirect evidence. Being founded on the observation and 
 experience of the mutual connection between facts and circum- 
 stances, the question of its competency is easy or difficult of solu- 
 tion according as such supposed connection is constant or more 
 or less regular and frequent. But as a safe practical rule it may be 
 laid down that in no case is evidence to be excluded of any fact 
 or circumstances, connected with the principal transaction, from 
 which an inference to the truth of a disputed fact can reasonably 
 be made." Com. 7'. Jeffries, 7 Allen (Mass.), 548. 
 
 " But yet the competency of a collateral fact to be used as the 
 basis of legitimate argument is not to be determined by the con- 
 clusiveness of the inferences it may afford in reference to the 
 litigated fact. It is enough if these may tend, even in a slight 
 degree, to elucidate the inquiry, or to assist, though remotely, to a 
 determination probably founded in truth. Indeed, to require a 
 necessary relation between the fact known and the fact sought 
 would sweep away many sources of testimony to which men daily 
 recur in the ordinary business of life ; and that cannot be rejected 
 by a judicial tribunal without hazard of shutting out the light." 
 Stevenson v. Stewart, 1 1 Pa. 308. 
 
 The Assurance Produced by Circumstantial Evidence is in its 
 Nature Sufficient. 
 
 If absolute certainty were required it would be necessary to 
 exclude testimonial evidence and even open confessions, as well 
 as circumstantial evidence. As said by Justice Story in U. S. v. 
 Gibert, 2 Sumner (U. S.), 19, 28: "It is not even certain that 
 criminals who, in capital cases, plead guilty, and, by confession of 
 their guilt in open court, submit to the sentence of the law, are 
 always guilty of the offence. Cases have occurred in which men 
 have been accused and tried, and convicted of murder, upon their 
 own solemn confession in a court of justice ; when it has been 
 afterwards ascertained that the party could not have been guilty ; 
 for the person supposed to be murdered was found to be still living
 
 AMERICAN NOTES. iS e 
 
 or lost his life at another place, and at a different period. And yet 
 it never has been supposed that a solemn confession in open court 
 was not a just ground to believe the guilt of the party accused. 
 But to what conclusion does this tend? Admitting the truth of 
 such cases, are we then to abandon all confidence in circum- 
 stantial evidence, and in the testimony of witnesses? Are we 
 to declare that no human testimony to circumstances or to 
 facts is worthy of behef, or can furnish a just foundation for a 
 conviction? That would be to subvert the whole foundations of 
 the administration of public justice." 
 
 That it is possible by means of circumstantial evidence to prove 
 the guilt of the accused beyond a reasonable doubt, as that term is 
 understood in the law, is indicated by Chief Justice Shaw in Com. 
 ■V. Webster, 5 Cush. (Mass.) 259, 319. " It is essential, therefore, 
 that the circumstances taken as a whole, and giving them their 
 reasonable and just weight, and no more, should, to a moral cer- 
 tainty, exclude every other hypothesis. For it is not sufficient to 
 establish a probability, though a strong one arising from the doc- 
 trine of chances, that the fact charged is more likely to be true 
 than the contrary ; but the evidence must establish the truth of 
 the fact to a reasonable and moral certainty ; a certainty that con- 
 vinces and directs the understanding, and satisfies the reason and 
 judgment, of those who are bound to act conscientiously upon 
 it. This we take to be proof beyond a reasonable doubt ; because 
 if the law, which mostly depends upon considerations of a moral 
 nature, should go further than this and require absolute certainty, 
 it would exclude circumstantial evidence altogether." And would 
 exclude, it might be truthfully added, testimonial evidence also. 
 
 In Gibson v. Hunter, 2 H. Bl. 298, the argument of counsel for 
 the admission of certain evidence, which the Court admitted, was 
 as follows : " The defendant in error humbly submits that it is com- 
 petent to a jury to find matters of fact without direct or positive 
 testimony of those facts and upon circumstantial evidence only, 
 although the inference or conclusion to be drawn from the circum- 
 stances proved be not absolutely certain or necessary ; that it is 
 sufficient if the circumstantial evidence be such as may afford a 
 fair and reasonable presumption of the facts to be tried ; and if 
 the evidence has that tendency it ought to be received and left to 
 the consideration of the jury, to whom alone it belongs to determine
 
 1 8/ AMERICAN NOTES. 
 
 upon the precise force and effect of the circumstances proved, and 
 whether they are sufficiently satisfactory and convincing to warrant 
 them in finding the fact in issue." 
 
 Motive Unnecessary. 
 
 Circumstantial evidence may be sufficient upon which to con- 
 vict defendant of assault with intent to kill even though no motive 
 whatever be shown. Sterling v. State, 89 Ga. 807. 
 
 Moral Evidence. 
 
 Moral evidence is evidence sufficient to induce a belief upon 
 which men would act in their own affairs. Babcock v. Fitchburg 
 R. R. Co., 140 N. Y. 308, 311. 
 
 " None but mathematical truth is susceptible of that high degree 
 of evidence called demonstration, which excludes all possibility of 
 error, and which, therefore, may reasonably be required in support 
 of every mathematical deduction. Matters of fact are proved by 
 moral evidence alone ; by which is meant not only that kind of 
 evidence which is employed on subjects connected with moral 
 conduct, but all the evidence which is not obtained either from 
 intuition or from demonstration. In the ordinary affairs of life 
 we do not require demonstrative evidence, because it is not con- 
 sistent with the nature of the subject, and to insist upon it would 
 be unreasonable and absurd. The most that can be afifirmed of 
 such things is, that there is no reasonable doubt concerning them. 
 The true question, therefore, in trials of fact, is not whether it is 
 possible that the testimony may be false, but whether there is 
 sufficient probability of its truth ; that is, whether the facts are 
 shown by competent and satisfactory evidence. Things estab- 
 lished by competent and satisfactory evidence are said to be 
 proved." Greenleaf on Evid. § i. 
 
 Experience the Basis. 
 
 "The logic upon which circumstantial evidence is based is 
 this: We know from our experience that certain things are usual 
 concomitants of each other. In seeking to establish the existence 
 of one, where the direct proof is deficient or uncertain, we prove 
 the certaui existence of the co-relative fact, and thus establish,
 
 AMERICAN NOTES. l8^ 
 
 with more or less certainty, according to the nature of the case, 
 the reahty of the principal fact." People v. Kennedy, 32 N. Y. 
 141, 145. 
 
 Doubts as to Reliability of Experience. 
 
 In I Taylor on Evidence, § 66, it is said, "Throw a case of 
 circumstantial evidence into the form of a syllogism, and it will 
 be found that the major premise rests solely on the erring expe- 
 rience of the tribunal to whom it is presented." 
 
 And Lord Bacon maintains that there is a natural tendency 
 in the human mind to suppose a greater order and conformity in 
 things than actually exist. Novum Organum, aphor. 45. 
 
 Order of Introducing Evidence. 
 
 If a circumstance tends to make a material fact more or less 
 probable, it is admissible, and the order in which such circum- 
 stances may be introduced is largely in the discretion of the party 
 introducing them. Johnson v. Com. 115 Pa. St. 369. 
 
 Weight of Evidence Required. 
 
 It is sometimes said that circumstantial evidence must be equal 
 in weight to the testimony of one credible witness, but there is no 
 such rule in the common law. State v. Norwood, 74 N. C. 247. 
 
 But by statute it is sometimes provided that '• no person shall 
 be convicted of any crime punishable by death without the testi- 
 mony of at least two witnesses, or that which is equivalent thereto." 
 See State v. Kelly, 77 Conn. 266, 274. 
 
 Circumstantial Evidence is Ad?nissible to Prove Relevafit Facts 
 even though they be not Facts in Issue. 
 
 Courts have very frequently said that where \.\\t factum proban- 
 dum is to be established by circumstantial evidence, those circum- 
 stances from which the inference is to be made must be proved by 
 direct evidence. See Globe Ace. Ins. Co. v. Gerisch, 163 111. 
 625 ; Binns v. State, 66 Ind. 428; U. S. v. Ross, 92 U. S. 281, 
 3 Encyc. Evidence, 70. And see for criticism of the doctrine, 
 Wigmore on Evidence, § 41. 
 
 But the statement cannot be strictly true. The fact that the 
 defendant made a plan to commit the crime charged, is every-
 
 1 8/; AMERICAN NOTES. 
 
 where adniissil)le in evidence against him, and where tlie parties 
 have not themselves confessed to having such a jjlan, the fact 
 must necessarily be proved by the surrounding circumstances. 
 The facts that defendant bought a gun and that he thereupon lay 
 in wait for another are facts from which may be inferred his plan 
 to commit a crime, and his having such a plan is a fact from which 
 his guilt may be inferred. 
 
 This is an inference from an inference, and yet courts univer- 
 sally admit such evidence. 
 
 It is sometimes said that the facts from which an inference is 
 to be drawn must not themselves be uncertain, but must be proved 
 by direct evidence. But certainty and proof by direct evidence 
 are two different things. It is true that the jury ought not to be 
 allowed to draw an inference from facts that are too uncertain to 
 be a reasonable basis for any inference, but this is just as likely 
 to be the case where those facts are sought to be proved by direct 
 evidence as by indirect. 
 
 The rule may, however, be given a meaning that is very ob- 
 viously true. We cannot draw an inference until we have some- 
 thing from which to infer, and although we can draw an inference 
 from the fact which is itself inferred, the fact that is tlie starting 
 point of our chain of inferences must be proved by other evidence 
 than circumstantial. 
 
 Furthermore, courts are justified in excluding evidence of facts 
 on the ground tliat they are too remote and require too many 
 inferences before arriving at \.\\e fadtim proband um. See State v. 
 Kelly, 77 Conn. 266. 
 
 That the circumstances from which the guilt of the defendant 
 is to be inferred may themselves be established by circumstantial 
 evidence, is held in State v. Smith, 102 Iowa, 656, 663, where in 
 order to prove the defendant guilty of poisoning her husband an 
 effort was made to show that she previously shot him. The 
 Court says : " 'i'he appellant does not deny, but admits, that acts, 
 conduct, threats, declarations, and statements of a person accused 
 of crime, which occurred before it was committed, are admissible 
 to show a motive or intent, but urges that, to be competent, the 
 evidence must be direct, and not circumstantial. We are not 
 aware that the authorities make the distinction urged, and do not 
 think there is any sufficient ground upon which to base it. If a
 
 AMERICAN NOTES. l8/ 
 
 prior act or declaration may be proved as tending to show the 
 guilt of a person accused of crime, we are of the opinion that 
 it may be shown by any evidence competent to prove the act if 
 it were directly in issue, whether such evidence be positive and 
 direct, or circumstantial only." The illustration given in Brad- 
 shavv V. State, 17 Neb. 147, to show that where there are many 
 circumstances from which an inference may be drawn, it may be 
 sufficiently established even though some of those circumstances 
 be disbelieved, also illustrates that guilt may be inferred from 
 facts themselves inferred. The Court says, supposing a case of 
 wife murder : " All the circumstances of the case point with almost 
 absolute certainty to his guilt. The jury are satisfied of it beyond 
 a reasonable doubt. He is proved to be devoid of affection for 
 her, has been seen to cruelly maltreat her. His conduct toward 
 another woman establishes the fact that she has supplanted his 
 wife in his affection. The poison has been found in the body of 
 the deceased in a sufficient quantity to produce death. He is 
 shown to have recently purchased the same kind of poison for the 
 alleged purpose of destroying a family dog which has been perma- 
 nently injured, but which he wishes to kill without pain. It is 
 shown he had no dog, and none had been injured. He had but 
 recently caused the life of his wife to be heavily insured. He had 
 been heard to make threats and insinuations which, in the light of 
 subsequent events, show that he intended and confidently expected 
 her death at an early day. A witness is called for the prosecution 
 who testifies that at a particular time he saw the accused in the 
 company of the other woman under circumstances of very ques- 
 tionable propriety, and which, if believed, would establish illicit 
 intercourse between them. This last fact is ' relied ' upon as a 
 'link in the chain of circumstances ' to establish the fact of his 
 guilt of the crime charged. The jury are fully satisfied of his 
 guilt, but from the conduct or demeanor of the witness, or from 
 some other cause, do not believe the story of the illicit intercourse. 
 Must they therefore find the accused not guilty? Clearly not." 
 
 Here maltreatment argues lack of affection, lack of affection 
 argues a desire to be rid of the wife, the desire to be rid of her 
 argues that he killed her. Again, his false purpose in buying the 
 poison argues the existence of another purpose which he desired 
 to conceal, hence it must have been an evil purpose, it may have
 
 iSy AMERICAN NOTES. 
 
 been a purpose to kill his wife, and hence if he may have had the 
 purpose he may have killed her. Again from the fact of illicit 
 intercourse with another it cannot be inferred directly that he killed 
 his wife, but it may be the basis of a chain of inference to this end. 
 
 In State z'. Kelly, 77 Conn. 266, 271, it is said, in excluding 
 certain testimony that the deceased had been despondent some 
 months before her death and exhibited no desire to live : " The 
 Court was plainly justified in excluding this testimony as too remote. 
 If it could serve any useful purpose it would be in creating an infer- 
 ence of the harboring of a purpose to take life to use in drawing 
 another inference that she did so. Evidence for the purpose of 
 creating an inference of the fact upon which to base an inference 
 of another fact is generally inadmissible. It is too remote." 
 
 But the Court itself in this opinion intimates that such evidence 
 is admissible when nearer in point of time, though in such case 
 the double inference would be just as necessary. See Com. v. 
 Trefethen, 157 Mass. 180. 
 
 Circumstantial evidence is admissible if it tends to establish any 
 material fact, even though it does not tend to establish the guilt 
 of the defendant. State v. Reno, 67 Iowa, 587. 
 
 Where a motive on the part of the defendant may be inferred 
 from his acts or statements before the event, such acts or state- 
 ments may be proved by circumstantial evidence. State v. Smith, 
 102 Iowa, 656. 
 
 Evide7ice too Remote. 
 
 That evidence otherwise relevant may be excluded because too 
 remote is laid down as follows in Art. 2, Stephen's Dig. Evid. : 
 " Provided that the judge may exclude evidence of facts which, 
 though relevant or deemed to be relevant to the issue, appear to 
 him too remote to be material under all the circumstances of the 
 case." 
 
 And commenting upon this in State v. Kelly, 77 Conn. 266, 
 269, the Court says, "This general principle finds its frequent ex- 
 pression in such statements as that matter likely to mislead the 
 jury, or to be misused by it, or to unnecessarily coniphcate a case, 
 or of slight, remote, or conjectural significance, ought not to be 
 admitted." 
 
 In Thayer's Cases on Evidence, 229, it is said : " Remoteness as
 
 AMERICAN NOTES. iS k 
 
 applied to evidence is a term which has regard for other factors 
 than mere lapse of time, even where it is a factor, as it often is not. 
 The essence of remoteness is such a want of open and visible con- 
 nection between the evidentiary and principal facts that, all things 
 considered, the former is not worthy or safe to be admitted in 
 proof of the latter. . . . Generally speaking, the question of re- 
 moteness, as justifying the exclusion of evidence, must depend 
 upon all the considerations, including time, the character of the 
 evidence, and all the surrounding circumstances which in the 
 opinion of the Court ought to have a bearing upon its worthiness 
 to be brought into the consideration and determination of the matter 
 in contention." 
 
 Rules of law ought not to be so artificial as to sh'it out proof of 
 any circumstance, even though it be remote, which may assist in 
 determining guilt or innocence. Johnson v. State, 14 Ga. 55.
 
 CHAPTER II. 
 
 CIRCUMSTANTIAL EVIDENCE. 
 
 Section i. 
 
 essential characteristics of circumstantial 
 evidence. 
 
 The epithets direct and indirect or circumstan- 
 tial, as applied to testimonial evidence, have been 
 sanctioned by such long and general use, that it might 
 appear presumptuous to question their accuracy, 
 as it would perhaps be impracticable to substitute 
 others more appropriate. But assuredly these terms 
 have frequently been very indiscriminately applied, 
 and the misuse of them has occasionally been the 
 cause of lamentable results ; it is therefore essential 
 accurately to discriminate the proper application of 
 them. 
 
 On a superficial view, direct and indirect or cir- 
 cumstantial, would appear to be distinct species of 
 evidence ; whereas, these words denote only the 
 different modes in which those classes of evidentiary 
 facts operate to produce conviction. Circumstantial 
 evidence is of a nature identically the same with 
 direct evidence ; the distinction is, that by direct 
 EVIDENCE is intended evidence which applies directly 
 
 c 2
 
 20 CIRCUMSTANTIAL EVIDENCE. 
 
 to the fact which forms the subject of inquiry, the 
 factum probandiim ; circumstantial evidence is 
 equally direct in its nature, but, as its name imports, 
 it is direct evidence of a minor fact or facts inci- 
 dental to or usually connected with some other fact 
 as its accident, and from which such other fact is 
 therefore inferred. A witness deposes that he saw 
 A. inflict on B. a wound, of which he instantly died ; 
 this is a case of direct evidence. B. dies of poison- 
 ing ; A. is proved to have had malice and uttered 
 threats against him, and to have clandestinely pur- 
 chased poison, wrapped in a particular paper, and of 
 the same kind as that which has caused death ; the 
 paper is found in his secret drawer, and the poison 
 gone. The evidence of these facts is direct ; the facts 
 themselves are indirect and circumstantial , as applic- 
 able to the inquiry whether a murder has been 
 committed, and whether it was committed by A. 
 
 So rapid are our intellectual processes, that it is 
 frequently difficult, and even impossible, to trace the 
 connection between an act of the judgment, and the 
 train of reasoning of which it is the result ; and the 
 one appears to succeed the other instantaneously, 
 by a kind of necessity. This fact obtains most 
 commonly in respect of matters which have been 
 frequently the objects of mental association. 
 
 In matters of direct testimony, if credence be 
 given to the relators, the act of hearing and the act 
 of belief, though really not so, seem to be contem- 
 poraneous. But the case is very different when we 
 have to come to a decision upon circumstantial
 
 CHARACTERISTICS. 21 
 
 evidence, the judgment in respect of which is essen- 
 tially inferential. There is no apparent necessary 
 connection between the facts and the inference ; the 
 facts may be true and the inference erroneous, and 
 it is only by comparison with the results of observa- 
 tion in similar or analogous circumstances, that we 
 acquire confidence in the accuracy of our conclusions. 
 
 The term presumptive is frequently used as 
 synonymous with circumstantial evidence ; but it 
 is not so used with strict accuracy. The word 
 " presumption," ex vi termini, imports an inference 
 from facts; and the adjunct " presumptive," as applied 
 to evidentiary facts, implies if not the certainty at 
 least the great probability of some relation between 
 the facts and the inference. Circumstances generally, 
 but not necessarily, lead to particular inferences ; 
 for the facts may be indisputable, and yet their 
 relation to the principal fact may be only apparent 
 and not real ; and even when the connection is real, 
 the deduction may be erroneous. Circumstantial 
 and presumptive evidence differ therefore as genus 
 and species. 
 
 The force and effect of circumstantial evidence 
 depend upon its incompatibility with, and incapa- 
 bility of, explanation or solution upon any other 
 supposition than that of the truth of the fact which 
 it is adduced to prove ; the mode of argument 
 resembling the method of demonstration by the 
 rednctio ad absurdiun. But this is a part of the 
 subject which will more appropriately admit of 
 amplification in a future part of this essay.
 
 22 circumstantial evidence. 
 
 Section 2. 
 
 presumptions. 
 
 It is essential to a just view of our subject that 
 our notions of the nature of presumttions should be 
 precise and distinct. A presumption is a probable 
 consequence, drawn from facts (either certain, or 
 proved by direct testimony), as to the truth of a fact 
 alleged, but of which there is no direct proof It 
 follows, therefore, that a presumption of any fact 
 is an inference of that fact from others that are 
 known (a). The word " presumption," therefore, 
 inherently imports an act of reasoning, — a conclusion 
 of the judgment ; and it is applied to denote such 
 facts of moral phenomena, as from experience we 
 know to be invariably or commonly connected with 
 some other related fact (d). A wounded and bleed- 
 ing body is discovered ; the pockets are empty 
 and have the appearance of having been rifled ; 
 wide and deep footmarks are found in a direction 
 proceeding from the body ; or a person is seen 
 running from the spot. In the one case are observed 
 marks of flight, in the other is seen the fugitive, 
 and we know that guilt naturally endeavours to 
 escape detection. These circumstances induce the 
 presumption that crime has been committed ; the 
 presumption is a conclusion or consequence from 
 the circumstances. The antecedent circumstances 
 
 (a) Per Abbott, C. J., in Rex v. Burdett, 4 B. & Aid. 161. 
 
 {p) In strictness the presumption is rather the link which experience 
 tells us is found to exist between certain facts and certain other facts, 
 but it is so commonly used to denote not so much the process or 
 method of connection as the conclusion itself, that this passage and 
 many others have been left as in the original.
 
 PRESUMPTIONS. 23 
 
 therefore are one thing, the presumption from 
 them another and different one. Of presumptions 
 afforded by moral phenomena, a memorable instance 
 is recorded in the Judgment of Solomon, whose 
 knowledge of the all-povverful force of maternal love 
 supplied him with an infallible criterion of truth (^). 
 So, when Aristippus, who had been cast away on 
 an unknown shore, saw certain geometrical figures 
 traced in the sand, his inference that the country 
 was inhabited by a people conversant with mathe- 
 matics was a presumption of the same nature {d). 
 It is evident that this kind of reasoning is not 
 peculiar to legal science, but is a logical process 
 common to every subject of human investigation. 
 
 All presumptions connected with human conduct 
 are inferences founded upon the observation of 
 man's nature as a sentient being and a moral agent ; 
 and they are necessarily infinite in variety and 
 number, differing according to the diversities of 
 individual character, and to the innumerable and 
 ever-chanp^ingr situations and emergencies in which 
 men are placed. Hence the importance of a know- 
 ledge of the instincts, affections, desires, and moral 
 capabilities of our nature, to the correct deduction of 
 such presumptions as are founded upon them, and 
 which are therefore called natural presumptions {e). 
 
 Legal presumptions are founded upon natural 
 presumptions, being such natural presumptions as 
 
 {c) Domat's Civil Law, b. iii. tit. 6, s. 4, § 6. 
 
 {d) Gambier's Introduction to the Study of Moral Ev. 55. 
 
 {e) 3 Mascardus De Probationibus, Conclusio MCCXXVI.
 
 24 CIRCUMSTANTIAL EVIDENCE. 
 
 are connected with human actions so far as they 
 are authoritatively constituted by the legislator or 
 deduced by the magistrate. 
 
 The civilians divided legal presumptions into two 
 classes, namely, prccsiwiptiones j'ttris et de J2ire, and 
 prcestmipiioncs juris simply. 
 
 Presumptions of the former class were such as 
 were considered to be founded upon a connection 
 and relation so intimate and certain between the 
 fact known and the fact sought, that the latter was 
 deemed to be an infallible consequence from the 
 existence of the first. Such presumptions were 
 called pro: sump tiones juris, because their force and 
 authority were recognized by the law ; and de jure, 
 because they were made the foundation of certain 
 specific legal consequences (/), against which no 
 aro-ument or evidence was admissible ; while 
 prcBstimptiones jiwis simply, though deduced from 
 facts characteristic of truth, were always subject to 
 be o^'erthrown by proof of facts leading to a contrary 
 presumption. 
 
 In matters of property, the principal modifications 
 of which are matters of positive institution, the laws 
 of every country have created artificial legal pre- 
 sumptions, grounded upon reasons of policy and 
 convenience, to prevent social discord and to fortify 
 private right. The justice and policy of such regula- 
 tions have been thus eloquently enforced : " Civil 
 cases regard property : now, although property itself 
 
 (/) Menochius De Praesumptionibus, lib. i. q. 3.
 
 PRESUMPTIONS. 2$ 
 
 is not, yet almost everythinc;- concernincr property, 
 and all its modifications, is of artificial contrivance. 
 The rules concerning- it become more positive, as 
 connected with positive institutions. The legislator 
 therefore always, the jurist frequently, may ordain 
 certain methods, by which alone they will suffer 
 such matters to be known and established ; because 
 their very essence, for the greater part, depends on 
 the arbitrary conventions of men. Men act on them 
 with all the power of a creator over his creatures. 
 They make fictions of law and presumptions of law 
 {prcEsumptiojies juris et dc jure) according to their 
 ideas of utility — and against those fictions, and 
 against presumptions so created, they do and may 
 reject all evidence " {g). 
 
 But in penal jurisprudence, man as a physical 
 being and a moral agent, such as he is by natural 
 constitution and by the influences of social condition, 
 is the subject of inquiry. Punitive justice is, for the 
 most part, applied to injurious actions proceeding 
 from malignity of purpose, and not to physical actions 
 merely. It has been said with great force and 
 accuracy, that " where the subject is of a physical 
 nature, or of a moral nature, independent of their 
 conventions, men have no other reasonable authority 
 than to register and digest the results of experience 
 and observation " ; and that " the presumptions 
 which belong to criminal cases are those natural 
 
 {g) Burke's Works : Report from the Committee of the House of 
 Commons appointed to inspect the Lords' Journals in relation to their 
 proceeding in the trial of Warren Hastings, Esquire, under heading 
 "Circumstantial Evidence." Ed. Rivington, 1822, vol. xivr. p. 397. 
 3 Mascardus De Probationibus. ConclusioMCCXXVllI.
 
 26 CIRCUMSTANTIAL EVIDENCE. 
 
 and popular presumptions which are only obser- 
 vations turned into maxims, like adages and 
 aj)ophtheL,mis, and are admitted (when their grounds 
 are established) in the place of proof, where better 
 is wanting, but are to be always overturned by 
 counterproof " (//). Hence therefore a third class 
 of presumptions, which the civilians ZTi^^A prasiimp- 
 lioncs Jiominis, because they were inferred by the 
 sagacit}^ and discretion of the judge from the 
 facts judicially before him. Such presumptions are 
 in fact natural presumptions simply, deriving their 
 force from that relation and connection which are 
 recognized and acknowledged by the unsophisticated 
 reason of all observing and reflecting men. 
 
 Presumptions of every kind, to be just, must be 
 dictated by nature and reason ; and, except under 
 special and peculiar circumstances, it is impossible, 
 without a dereliction of every rational principle, to 
 lay down positive rules of presumption, where every 
 case must of necessity be connected with peculiarities 
 of personal disposition and of concomitant circum- 
 stances, and be therefore irreducible to any fixed 
 principle. In criminal jurisprudence, therefore, arbi- 
 trary presumptions should be sparingly admitted, 
 and even when they are so, they occasionally work 
 injustice. On the conviction of the captain of a 
 schooner for having naval stores in his possession, 
 Mr. Baron Alderson, in passing sentence of six 
 months' imprisonment, said that he was satisfied the 
 
 (Ji) Burke's Works : see reference p. 25, supra. See p. 399 of 
 edition there cited. 3 Mascardus De Pi-obationibus, Conclusio 
 Mccxxvni.
 
 PRESUMPTIONS. 27 
 
 prisoner had become possessed of the stores in 
 ignorance of the Act of ParHament, but that it was 
 of the greatest importance that its provisions should 
 be generally known, and expressed his hope that his 
 good character would operate to obtain a mitigation 
 of the sentence (/). It would be as unreasonable to 
 subject human actions to unbending rules of pre- 
 sumption, as to prescribe to the commander of a 
 ship inflexible rules for his conduct, without any 
 latitude of discretion in the unforeseen and in- 
 numerable accidents and contingencies of the 
 tempest and the ocean. Where a peremptory pre- 
 sumption of legal guilt is not pernicious and unjust, 
 it is in general at least unnecessary ; for, if it be a 
 fair conclusion of the reason, it will be adopted by 
 the tribunals, without the mandate of the legislature. 
 There may, no doubt, be cases, where the provisions 
 of the law are peculiarly liable to be defeated or 
 evaded by subtle contrivances and shifts most diffi- 
 cult of prevention. But, even in such cases, legal 
 presumptions can only be justifiable where the proxi- 
 mate fact from which the presumption is made to flow 
 is clearly of a guilty character and tandtncy per se, and 
 would afford, even in the absence of legal enactment, 
 a strong moral ground of presumption indicative ot 
 the particular act of criminality intended to be 
 repressed (X-) ; and however explicit and exclusive 
 may be the language of the legislature, the tribunals 
 must by an inherent necessity give effect to all such 
 surrounding circumstances as tend to repel or 
 
 (i) Reg. V. Tranttock, Liverpool Winter Ass. 1848. 
 (k) Traite des Preuves, par Bonnier, 2nd ed. 1852, p. 702, 
 § 752.
 
 28 CIRCUMSTANTIAL EVIDENCE. 
 
 modify the particular presumption, or to create a 
 counter-presumption of equal or superior weight (/). 
 It is impossible to recall without somethin_i( akin to 
 horror the law (w) which made the concealment of 
 the death of an illegitimate child by its mother, 
 conclusive evidence of murder, unless she could 
 make proof, by one witness at least, that the child 
 was born dead, which too long disgraced our statute- 
 book ; whereas in truth it affords no ground to 
 warrant such a conclusion, since it is more natural and 
 more just to attribute the suppression to a desire to 
 conceal shame and to escape dishonour. 
 
 Modern legislation has introduced a large class of 
 offences, where the only suggestion of moral guilt 
 lies in the fact of disobedience to the law. Offences 
 against building acts and byelaws for the regulation 
 of towns and other communities are typical examples. 
 There is no room in such cases for any presumption. 
 Legislation says that such a thing shall or shall not 
 be done, and affixes a penalty to noncompliance with 
 the enactment. That is all. 
 
 As evidentiary circumstances and their combina- 
 tions are infinitely varied, so also are the presumptions 
 to which they lead ; and a complete enumeration 
 would in either case be impracticable. The writers 
 on the civil law have made a comprehensive and 
 instructive collection of facts and inferential conclu- 
 sions, in relation to a vast number of actions connected 
 
 (/) See infra, ch. iii. s. 8, pp. 128, 130. 
 
 {ill) Stat. 21 Jac. I. c. 27, now repealed. See inrra^ ch. vii. s. 5, 
 sub-s. 3, p. 356.
 
 PRESUMPTIONS. 29 
 
 with legal accountability. But many things advanced 
 by those laborious and elaborate authors have rela- 
 tion to a state of society, and to legal institutions and 
 modes of procedure, wholly dissimilar from our own. 
 The law of England admits of no such thing as 
 the seiui-plcna probatio, founded on circumstances 
 of conjecture and suspicion only, which in many 
 countries governed by the Roman law, was held to 
 warrant the infliction of torture with a view to 
 compel admissions and complete imperfect proof. 
 Hence the total inapplicability with us of the sub- 
 divisions of indicia, signa^ adininiciila, conjecturce, 
 dubia, and siispicioncs, which are found in the writers 
 of other countries whose jurisprudence is founded 
 upon that of Rome — subdivisions which appear to 
 be arbitrary, vague, and useless. But it is manifest 
 that, under legal institutions which admitted of com- 
 pulsory self-accusation, in order to complete proof 
 insufficient and inconclusive in itself, and where the 
 laws were administered by a single judge, without 
 the salutary restraints of publicity and criticism, an 
 accurate and elaborate record of the multitudinous 
 actions and occurrences which had been submitted 
 to the criminal tribunals, operated as an important 
 limitation upon the tyranny and inconstancy of 
 judicial discretion. 
 
 It is calculated to excite surprise, that arbitrary 
 technical rules should ever have been adopted for 
 estimating the force and effect of particular facts as 
 leading to presumptions ; a matter purely of reason 
 and logic. It is probable, nevertheless, that the 
 attempt originated in the desire to escape a still
 
 30 CIRCUMSTANTIAL EVIDENCE. 
 
 o-reater absurdity. " Tcsfis iiiuis, testis mdhis'* 
 " wins testis non est mcdiendus" were fundamental 
 maxims of the text-writers on the Civil and Canon 
 Laws, and of most ancient codes (71), as they still are 
 of judicial procedure in many parts of Europe {0). 
 Since presumptions have not the same force as 
 direct evidence, it was supposed to be required, as a 
 logical sequence, that there should be a concurrence 
 of three presumptions, as the imaginary equivalent 
 for the testimony of two ocular witnesses, where such 
 testimony was not to be had. It is discreditable to 
 the state of moral and legal science that these absurd 
 and antiquated notions, worthy of the darkest ages 
 of society, should have been countenanced and per- 
 petuated in the legislation of several of the nations 
 of Europe even in modern times (/>). It is obvious 
 that a single presumption may be conclusive, and 
 that an accumulation of many presumptions may 
 be of but little weight. The simplest and most 
 elementary dictates of common sense require that 
 presumptions should not be numbered merely, but 
 that they should be weighed according to the 
 principles which are applied in estimating the effect 
 of testimonial evidence. 
 
 In this connection we may remember what a dis- 
 tinguished historian has said : " It can by no means 
 be laid down as a general maxim that the assertion 
 
 {ft) Deut. xvii. 6, xix. 15 ; Numb. xxxv. 30 ; 4 Michaelis Comment- 
 aries on the Laws of Moses, by Smith, Art. ccxcix. "of Witnesses." 
 
 {0) Code HoUandais, 1838; Code Penal d'Autriche ; Code de 
 Baviere, and many other German Codes. 
 
 {p) Code Criminel de Prusse, 1805 ; Code de Procedure Criminelle 
 d'Autriche, 1853; ditto de Modene, 1855.
 
 PRESUMPTIONS. 
 
 31 
 
 of two witnesses is more convincinp^ to the mind 
 than the assertion of one witness. The story told 
 by one witness may be in itself probable. The 
 story told by two witnesses may be extravagant. 
 The story told by one witness may be uncontra- 
 dicted. The story told by two witnesses may be 
 contradicted by four witnesses. The story told by 
 one witness may be corroborated by a crowd of cir- 
 cumstances. The story told by two witnesses may 
 have no such corroboration. The one witness may 
 be a Tillotson or Ken. The two witnesses may be 
 Oates or Bedloe " (^). 
 
 The prevalence of these fallacious methods of 
 judging of the force of evidence, explains the founda- 
 tion of the practice, abhorrent alike to justice and 
 common sense, of condemning to a minor punish- 
 ment persons who may be innocent, but against 
 whom there may exist apparent grounds of strong 
 presumption, though not that exact kind and amount 
 of proof which the rules of evidence arbitrarily 
 and unreasonably require ; as if a middle term in 
 criminal jurisprudence were not absurd and self-con- 
 tradictory (r). An eminent foreign jurist well re- 
 marks, that, ** Jamais il n'y a eu plus de condamna- 
 tions injustes que sous I'enipire dune jurisprudence 
 qui defendait de prononcer la peine capitale sur de 
 simples indices " (s). 
 
 (g) Macaulay, History of England, ch. xxii. 
 
 (r) See several such cases in Narratives of Remarkable Criminal 
 Trials, translated from the German of Feuerbach, by Lady Duff 
 Gordon. A Berne, in 1842, a man accused of murder by poisoning 
 was sentenced to six years' imprisonment, as vehcDientevicnt suspect. 
 
 (j) Bonnier, Traite des Preuves, 2nd ed. 1852, p. 677, § 719.
 
 32 CIRCUMSTANTIAL EVIDENCE. 
 
 The unreasonable stress, which in many countries 
 whose criminal procedure is derived from the Civil 
 Law, is laid upon the confession of the accused, and 
 the unwarrantable means which are resorted to in 
 order to obtain it, are the natural results of arbitrary 
 and unphllosophical rules of evidence, which neces- 
 sarily have the effect of closing many of the channels 
 of truth ; and frequently render it so difficult to 
 obtain full legal proof of crime, that Anselm von 
 Feuerbach.who was an eminent continental jurist and 
 criminal judge, declared, many years ago, tliat unless 
 a man chose to perpetrate his crimes in public, or to 
 confess them, he need not fear a conviction (/). 
 
 Attempts have been made by our own juridical 
 writers, but with no useful result, to classify pre- 
 sumptions in a more general way under terms ex- 
 pressive of their effect, as violent or necessary, 
 PROBABLE or GRAVE, and SLIGHT (?/). But this arrange- 
 ment is specious and fanciful rather than practical 
 and real ; nor is it entirely accurate, since a pre- 
 sumption may be violent and yet not necessary (x). 
 A more precise and intelligible classification of 
 presumptions is into, violent or strong, and slight. 
 But it is impossible thus to classify more than a 
 
 (t) See Edinburgh Review, Ixxxii. (1845) at p. 330, and see in 
 Christison on Poisons, 4th ed. p. 68, a German case where the crime 
 of murder by poisoning was considered as not fully proved because 
 the prisoner would not confess, but on account of the stronij probabihty 
 of his guilt he was condemned to fifteen years' imprisonment. 
 
 ill) Bentham's Rationale of Judicial Evidence, b. i. c. vi. s. 5 ; 
 Coke on Litt. 6 b. ; 3 IJlackstone's Comm. b. vii. p. 371. 
 
 {x) See Menochius De Prassumptionibus, Ub. i. q. 3, nos. i, 2, 3 ; 
 Essai des Preuves, par Gabriel, 373 ; Best on Presumptions (1844), 
 §§30 and 31, p. 37.
 
 PRESUMPTIONS. 33 
 
 comparatively few of the infinite variety of circum- 
 stances connected with human actions and motives, 
 or to lay down rules for distinguishing presumptions 
 of one of these classes from those of another; and the 
 terms of designation, from the inherent imperfections 
 of language, although not wholly destitute of utility, 
 are unavoidably defective in precision. We can 
 therefore only usefully apply these epithets as rela- 
 tive terms ; and the effect of particular facts must of 
 necessity depend upon the reality and closeness of 
 the connection between the principal and secondary 
 facts, and upon a variety of considerations peculiar 
 to each individual case, and can no more be pre- 
 dicated than the bou.idaries can be defined, of the 
 separate colours which form the solar spectrum. 
 
 It is convenient, and may be advantageous even, 
 in order to obtain a comprehensive view of the ten- 
 dencies and effect of a number of circumstances, to 
 group them together in their chronological relation 
 to the factum probandum, as antecedent, concomi- 
 tant, and subsequent; but to require the concurrence 
 of these several kinds of presumption, as in the 
 Bavarian criminal code of 1813, is an outrage upon 
 all legal and philosophical principle (^'). 
 
 By various statutes, many acts are made legal 
 presumptions of guilt, and the onus of proving any 
 matter of defence is expressly cast upon the party 
 accused ; but, with these exceptions, the truth of 
 every accusation is determined by the voice of a 
 
 ij) Bonnier, Traite des Preuves, 2nd ed. 1852, p. 683, § 727 ; Trait6 
 He la Preuve, par Mittermaier (traduit par Alexandre), c. 61. 
 C.E. D
 
 34 CIRCUMSTANTIAL EVIDENCE. 
 
 tribunal, upon consideration of the intrinsic and 
 independent merits of each particular case, acting 
 upon those principles of reason and judoment by 
 which mankind are governed in all other cases 
 where the same intellectual process is called into 
 exercise, unfettered by any obligatory and inflexible 
 presumptions. The inexpediency and inefficacy of 
 positive presumptions, as indications of the criminality 
 of intention, in which alone consists the essence of 
 legal guilt, have been thus exposed with equal force 
 and elegance by the hand of a master : — " The con- 
 nection of the intention and the circumstances, is 
 plainly of such a nature, as more to depend on the 
 sagacity of the observer than on the excellency of 
 any rule. The pains taken by the civilians on that 
 subject have not been very fruitful ; and the English 
 law-writers have, perhaps as wisely, in a manner 
 abandoned the pursuit. In truth, it seems a wild 
 attempt to lay down any rule for the proof of 
 intention by circumstantial evidence " (z). 
 
 Section 3. 
 
 relative value of direct and indirect or 
 circumstantial evidence (a). 
 
 The foregoing observations naturally lead to a 
 comparison of the relative value of Direct and In- 
 direct or Circumstantial Evidence ; an inquiry which 
 
 (2) Burke's Works : for reference see p. 25, supra, at place there 
 cited. 
 
 («) The whole subject of this chapter is admirably discussed in 
 Wharton on Criminal Evidence, 9th ed. 1884, ch. i.
 
 DIRECT AND CIRCUMSTANTIAL EVIDENCE. 35 
 
 becomes the more necessary, on account of some 
 novel and questionable doctrines which have received 
 countenance even from the judgment-seat. 
 
 The best writers, ancient and modern, on the 
 subject of evidence, have concurred in treating 
 circumstantial as inferior in cogency and effect to 
 direct evidence ; a conclusion which seems to follow 
 necessarily from the very nature of the different 
 kinds of evidence. But language of a directly 
 contrary import has been so often used by authorities 
 of no mean note, as to have become almost proverbial, 
 and to require examination. 
 
 It has been said that " circumstances are inflexible 
 proofs. They will not bend to the inclinations of 
 parties. Witnesses may be mistaken — may be 
 corrupted ; things can be neither ; and therefore, 
 so far as they go, deserve unlimited, unreserved 
 faith " {b). '* Circumstances," says Paley, " cannot 
 lie"(^). It is astonishing that sophisms like these 
 should have passed current without animadversion. 
 The '^ circumstances " are assumed to be in every 
 case established beyond the possibility of mistake ; 
 and it is implied, that a circumstance established to 
 be true possesses some mysterious force of its own, 
 special in its nature and essence. Now, a circumstance 
 is neither more nor less than a minor fact, and it may 
 be admitted of all facts, that they cannot lie ; for a 
 fact cannot at the same time exist and not exist : so 
 that in truth, the doctrine is merely the expression 
 
 {b) Burnett's Criminal Law of Scotland (181 1), 523, footnote. 
 (<r) Principles of Moral and Political Philosophy, b. vi. c. ix. 
 
 D 2
 
 3G CIRCUMSTANTIAL EVIDENCE. 
 
 of a truism, that a fact is a fact. It may also be 
 admitted that " circumstances are inflexible proofs," 
 but assuredly of nothing more than of their own 
 existence : so that this assertion is only a repetition 
 of the same truism in different terms. It seems also 
 to have been overlooked, that circumstances and 
 facts of every kind must be proved by human testi- 
 mony ; that although " circumstances cannot lie," 
 the narrators of them may ; that, like witnesses of 
 all other facts, they may be biassed or mistaken, 
 and that the facts, even if indisputably true, may 
 lead to erroneous inference. Thus far, then, cir- 
 cumstantial possesses no advantage over direct 
 evidence. 
 
 A distinguished statesman and orator has advanced 
 in unqualified terms the proposition, supported, he 
 alleges, by the learned, that " when circumstantial 
 proof is in its greatest perfection, that is when it is 
 most abundant in circumstances, it is much superior 
 to positive proof" {(^). Paley has said, with more 
 of caution, that " a concurrence of well-authenticated 
 circumstances composes a stronger ground of assur- 
 ance than positive testimony, unconfirmed by cir- 
 cumstances, usually affords " (e). Mr. Baron Legge, 
 upon a trial for murder, after speaking of that 
 " which the law calls a violent presumption," told 
 the jury that " where a presumption necessarily 
 arises from circumstances, they are more convincing 
 and satisfactory than any other kind of evidence, 
 
 {d) Burke's Works. For reference see p. 25, supra. See p. 402 of 
 the edition there cited. 
 
 (^) Moral and Political Philosophy, b. vi. c. ix.
 
 DIRECT AND CIRCUMSTANTIAL EVIDENCE. 37 
 
 because facts cannot lie'' [f). Air. Justice Duller, 
 in his charge to the jury in Donellan's case, said 
 *' that a presumption which necessarily arises from 
 circumstances is very often more convincing and 
 more satisfactory than any other kind of evidence, 
 because it is not within the reach and compass of 
 human abilities to invent a train of circumstances 
 which shall be so connected together as to amount 
 to a proof of guilt, without affording opportunities 
 of contradicting a great part if not all of those 
 circumstances " (^■). 
 
 It is obvious that the doctrine laid down in these 
 several passages is propounded in language which 
 not only does not accurately state the question, 
 but implies a fallacy, and that extreme cases — the 
 strongest ones of circumstantial, and the weakest 
 of positive evidence — have been selected for the 
 illustration and support of a general position. "A 
 presumption which necessarily arises from circum- 
 stances" cannot admit of dispute, and requires no 
 corroboration ; but then it cannot in fairness be 
 contrasted with and opposed to positive testimony, 
 unless of a nature equally cogent and infallible. If 
 evidence be so strong as necessarily to produce 
 certainty and conviction, it matters not by what 
 kind of evidence the effect is produced ; and the 
 intensity of the proof must be precisely the same, 
 
 (/) Rex V. Blandy, 18 State Trials, 1187. The italics are the 
 authors. 
 
 (^g) The trial of John Donellan, Esq., for the wilful murder of Sir 
 Theodosius Boughton, Bart., at the Assize at Warwick, March 50th, 1 78 1. 
 Taken in shorthand by Joseph Gurney (London), 1781. The facts of 
 this case are set out in detail below, in ch. vii. s. 4, pp. 324 — 330,
 
 38 CIRCUMSTANTIAL EVIDENCE. 
 
 whether the evidence be direct or circumstantial. 
 It is not intended to deny that circumstantial 
 evidence affords a safe and satisfactory ground of 
 assurance and beHef; nor that in many individual 
 instances it may be superior in proving power to 
 other individual cases of proof by direct evidence. 
 But a judgment based upon circumstantial evidence 
 cannot, in any case, be more satisfactory than when 
 the same result is produced by direct evidence, free 
 from suspicion of bias or mistake. 
 
 Perhaps no single circumstance has been so often 
 considered as certain and unequivocal in its effect, 
 as the anno-domini water-mark usually contained in 
 the fabric of writing-paper ; and in many instances 
 it has led to the exposure of fraud in the propounding 
 of forged as genuine instruments. But it is beyond 
 any doubt (and several instances of the kind have 
 occurred in the criminal and civil courts) that issues 
 of paper have taken place bearing the water-mark 
 of the year succeeding that of its distribution, — a 
 striking exemplification of the fallacy of some of 
 the arguments which have been remarked upon. 
 How often has it been iterated in such cases, that 
 circumstances are inflexible facts, and that facts 
 cannot lie ! 
 
 The proper effect of circumstantial, as compared 
 with direct evidence, was more accurately stated by 
 Lord Chief Baron Macdonald. "When circum- 
 stances connect themselves closely with each other, 
 when they form a large and a strong body, so as to 
 carry conviction to the minds of a jury, it may be
 
 DIRECT AND CIRCUMSTANTIAL EVIDENCE. 39 
 
 proof of a more satisfactory sort than that which is 
 direct. In some lamentable instances it has been 
 known that a short story has been got by heart, by 
 two or three witnesses ; they have been consistent 
 with themselves, they have been consistent with 
 each other, swearing positively to a fact, which fact 
 has turned out afterwards not to be true. It is 
 almost impossible for a variety of witnesses, speaking 
 to a variety of circumstances, so to concert a story, 
 as to impose upon a jury by a fabrication of that 
 sort, so that where it is cogent, strong and powerful 
 where the witnesses do not contradict each other, 
 or do not contradict themselves, it may be evidence, 
 more satisfactory than even direct evidence ; and 
 there are more instances than one where that has 
 been the case "(//). In another case the same 
 learned judge said, " Where the proof arises from 
 the irresistible force of a number of circumstances, 
 which we cannot conceive to be fraudulently brought 
 together to bear upon one point, that is less fal- 
 lible than under some ciraunstances direct evidence 
 MAY BE " {i\ 
 
 But, in truth, direct and circumstantial evidence 
 ought not to be placed in contrast, since they are 
 not mutually opposed ; for evidence of a circum- 
 stantial and secondary nature can never be justifiably 
 resorted to, except where evidence of a direct and 
 therefore of a superior nature is unattainable. 
 
 (Ji) Rex V. Patch, Surrey Spring Assizes, 1806. Several contem- 
 porary reports are to be found. The facts of the case are set out in 
 detail below at p. 390. 
 
 (z) Rex V. Smith, for arson, Old Bailey, June 15th, 1S13. Shorthand 
 Report by Gurney.
 
 40 CIRCUMSTANTIAL EVIDENCE. 
 
 The arL^umcnt founded upon the abundance of 
 the circumstances, and the consequent opportunities 
 of contradiction which they afford, belongs to anotl^er 
 [)art of the subject. While each of these incidents 
 adds sj^reatly to the probative force of circumstantial 
 evidence in particular cases, they have clearly no 
 connection with an inquiry into the value of circum- 
 stantial evidence in the abstract. However numerous 
 may be the independent circumstances to which the 
 witnesses depose, the result cannot be of a different 
 kind from, or superior to, that strong moral assurance 
 which is the consequence of satisfactory proof by 
 direct testimony, and for which, if such proof be 
 attainable, every tribunal, every reasonable mind 
 would reject any attempt to substitute indirect or 
 circumstantial evidence, as afibrdinof strong: reason 
 for suspicion and disbelief. 
 
 It has been said, that ''though no doubt in most 
 cases of circumstantial evidence there be 2i possibility 
 that the prisoner may be innocent, the same often 
 holds in cases of direct proof, where witnesses may 
 err as to identity of person, or corruptly falsify, for 
 reasons that are at the time unknown " {k). This 
 observation is unquestionably true. Even the testi- 
 mony of the senses, though it affords the safest 
 ground of moral assurance, cannot be implicitly 
 depended upon, even where the veracity of the wit- 
 nesses is above all suspicion. An eminent barrister, 
 a gentleman of acute mind and strong understanding, 
 swore positively to the persons of tw^o men, whom 
 he charged with robbing him in the open daylight. 
 
 (/{) Burnett's Criminal Law of Scotland (1811), 524.
 
 DIRECT AND CIRCUMSTANTIAL EVIDENCE. 4I 
 
 But it was proved by conclusive evidence, that the 
 men on trial were, at the time of the robbery, at so 
 remote a distance from the spot that the thing was 
 impossible. The consequence was, that they were 
 acquitted, and some time afterwards the robbers 
 were taken, and the articles stolen found upon them. 
 The prosecutor, on seeing these men, candidly 
 acknowledged his mistake, and it is said eave a 
 recompense to the persons he prosecuted, and who so 
 narrowly escaped conviction (/). It is probable that he 
 was deceived by the broad glare of sunlight, but there 
 can be no doubt of the sincerity of his impressions. 
 
 Many similar instances are upon record of the 
 fallibility of human testimony, even as to matters 
 supposed to be grounded upon the clearest evidence 
 of the senses, and where the misconception has re- 
 lated to the substantive matters of judicial inquiry. 
 It has been said with the strictest philosophical truth, 
 that " proof is nothing more than a presumption of 
 the highest order " (w). But these considerations, 
 instead of establishing the superior efficacy of cir- 
 cumstantial evidence, seem irresistibly to lead to the 
 conclusion that it is, a fortiori, more probable that 
 similar misconception may take place as to collateral 
 facts and incidents, to which perhaps particular 
 attention may not have been excited. 
 
 There is another source of fallacy and danger, to 
 t 
 
 [T) Rex V. Wood and Brown. This anecdote is told of Sir Thomas 
 Davenport in 28 State Trials at col. 819 ; Ann. Reg. 17S4. 
 
 {m) Per Lord Erskine in the Banbury Peerage Case, reported at 
 length in Nicholas on Adulterine Bastardy. See at p. 501.
 
 42 CIRCUMSTANTIAL EVIDENCE. 
 
 which, as already intimated, circumstantial evidence 
 is peculiarly liable, and of which it is necessary to 
 be especially mindful. Where the evidence is direct, 
 and the testimony credible, belief is the immediate 
 and necessary result ; whereas, in cases of circum- 
 stantial evidence, processes of inference and deduc- 
 tion are essentially involved, — frequently of a deli- 
 cate and perplexing character, — liable to numerous 
 causes of fallacy, some of them inherent in the nature 
 of the mind itself, which has been profoundly com- 
 pared to the distorting power of an uneven mirror, 
 imparting its own nature upon the true nature of 
 things {71). Mr. Baron Alderson, upon a trial of this 
 kind, said, " It was necessary to warn the jury against 
 the danger of being misled by a train of circum- 
 stantial evidence. The mind was apt to take a 
 pleasure in adapting circumstances to one another, 
 and even in straining them a little, if need be, to 
 force them to form parts of one connected whole ; 
 and the more ingenious the mind of the individual, 
 the more likely was it, in considering such matters, 
 to overreach and mislead itself, to supply some little 
 link that is wanting, to take for granted some fact 
 consistent with its previous theories and necessary 
 to render them complete " (<?). 
 
 It maybe objected that the foregoing observations 
 tend to create distrust in all human testimony. While 
 it must be admitted that the senses cannot be im- 
 
 (n) Novum Organum, lib. i. Aph. 41, 45 ; Best on Presumptions 
 (1844), p. 255 ; and see Bentham's Rationale of Jud. Ev. b. v. c. xv. 
 s. iv. 
 
 (fl) Reg, V. Hodges, 2 Lewin, C. C. 227. The learned Baron's 
 remarks are taken from a MS. report of the time.
 
 SOURCES AND CLASSIFICATION. 43 
 
 pHcitly depended upon, it is certain that their liability 
 to mistake may be greatly diminished by habits 
 of accurate observation and relation. The general 
 conformity of our impressions to truth and nature, 
 and the universal opinion and practice of mankind, 
 establish the reasonableness and propriety of our 
 faith in testimonial evidence. The interest to which 
 all controverted matters of fact give occasion, is a 
 manifestation of the preference in the human mind 
 of truth to falsehood : and, finally, the number of 
 mistaken inferences from the testimony of the senses 
 is inconceivably small, as compared with the alhiost 
 infinite number of judgments which are correctly 
 drawn from evidence of the kind in question. 
 
 Section 4. 
 
 of the sources and classification of circum- 
 stantial evidence. 
 
 In the present state of knowledge there can be 
 little danger of mistake as to the legitimate subjects 
 of human belief; but how melancholy is the picture 
 of the human intellect exhibited in the records 
 of superstition, imposture, and delusion, of enthu- 
 siasm and credulity, of judicial darkness and cruelty, 
 in the pages of our own history, as well as in those 
 of every other nation ! 
 
 A profound ignorance of the laws of nature, an 
 inability to account for the origin of evil, and to 
 reconcile its existence with the Divine attributes, 
 and the impuhe to avenge wrongs for which human
 
 44 CIRCUMSTANTIAL EVIDENCE. 
 
 institutions afforded no remedy, led to a universal 
 belief in the supernatural interposition of the Supreme 
 Being on behalf of his injured moral offspring. Of 
 this persuasion, augury, divination, judicial combat, 
 the various forms of trial by ordeal, the supposed 
 intimations of truth conveyed by means of appari- 
 tions and dreams, the bleeding of a corpse in the 
 presence of the murderer, and his reluctance to touch 
 it (/), were thought to be so many manifestations ; 
 while, with the wildest inconsistency, the belief was 
 equally general in the existence and influence of 
 witchcraft and other modes of demoniacal agency 
 over the minds and actions of men. The history of 
 all nations affords lamentable memorials of judicial 
 murders, the natural consequences of such mistaken 
 and desfradino- views. Without advertino^ to other 
 reasons, it is conclusive against all departure by the 
 Supreme Being from the ordinary course of His 
 administration, that so many instances of erroneous 
 conviction and execution have occurred in all ages 
 and in all countries. 
 
 The course of external nature, and the mental and 
 physical constitution of man, and his actions and 
 moral and mechanical relations, are the only sources 
 of correct inference from those facts which constitute 
 circumstantial evidence. 
 
 In every inquiry into the truth of any alleged fact, as 
 to which the materials for our judgment are secondary 
 facts, there must exist relations and dependencies, 
 
 {p) See Rex v. Standsjield, ii St. Tr. at col. 1403; and Rex v. 
 OkemaHy 14 St. Tr. 1324.
 
 SOURCES AND CLASSIFICATION. 45 
 
 inseparable from the principal fact, which will com- 
 monly be manifested by external appearances. No 
 action of a rational being is indifferent or independent ; 
 and every such action must necessarily be connected 
 with antecedent, concomitant, and subsequent con- 
 ditions of mind, and with external circumstances of 
 one kind or another, whether they be apparent or not. 
 
 A crime, so far as it falls within the cognizance of 
 human tribunals, is generally, with the exceptions 
 already pointed out(^), an act proceeding from a 
 wicked motive [ry, it follows, therefore, that in every 
 such act there must have been one or more voluntary 
 agents ; that it must have had corresponding rela- 
 tions to some precise moment of time and portion of 
 space ; that there must have existed inducements to 
 guilt, preparations for, and objects and instruments 
 of crime ; these — the acts of disguise, flight, or con- 
 cealment, the possession of plunder or other fruits 
 of crime, and innumerable other particulars connected 
 with individual conduct, and with moral, social, and 
 physical relations — afford materials for the determina- 
 tion of the judgment. It would be impracticable 
 to enumerate the infinite variety of circumstantial 
 evidentiary facts, which of necessity are as various 
 
 ( q) See p. 28, supra. 
 
 (r) The author here and elsewhere uses the word "motive" to 
 denote two things, which were frequently confused until Austin in his 
 lectures on Jurisprudence (Lects. 12, 18, 19) taught that they should 
 be distinguished, namely, motive and intention. A woman steals a 
 loaf to save her own life and that of her starving child. The motive^ 
 preservation of self and offspring, is not wrong ; it is the inte/ition to 
 take, without lawful justification, the property of another which makes 
 the act criminal. The author has defined the word motive correctly 
 at p. 48. Cf. p. 214-5, infra.
 
 46 CIRCUMSTANTIAL EVIDENCE. 
 
 as the modificcitions and combinations of events in 
 actual life. " All the acts of the party, all things 
 that explain or throw light on these acts, all the acts 
 of others relative to the affair, that come to his know- 
 ledge and may influence him ; his friendships and 
 enmities, his promises, his threats, the truth of his 
 discourses, the falsehood of his apologies, pretences, 
 and explanations ; his looks, his speech, his silence 
 where he was called to speak ; everything which 
 tends to establish the connection between all these 
 particulars ; — every circumstance, precedent, con- 
 comitant, and subsequent, become parts of circum- 
 stantial evidence. These are in their matter infinite, 
 and cannot be comprehended within any rule, or 
 brought under any classification " {s). 
 
 Evidentiary facts of a circumstantial nature are 
 susceptible only of a very general arrangement, into 
 two classes ; namely, moral indications, afforded by 
 the relations, and language and conduct of the party ; 
 and, secondly, facts which are apparently extrinsic 
 and mechanical, and independent of moral conduct 
 and demeanour : and each of these classes may be 
 further considered, as such facts are inculpatory or 
 exculpatory. But this division is grounded upon the 
 apparent rather than the real qualities of actions, 
 and cannot be regarded as strictly accurate ; since 
 all the actions of a rational agent are prompted by 
 motives, and are therefore really moral indications, 
 though it may not be always practicable to develop 
 their moral relations. 
 
 (s) Burke's Works. For reference see p. 25, supra. See p. 400 of 
 the edition there cited.
 
 AMERICAN NOTES 
 
 [Note to Chapter II.] 
 
 Characteristics of Circjutistantial Evidence. 
 
 Circumstantial evidence is evidence of facts from which the exist- 
 ence of other facts may be inferred. People v. Harris, 136 N. Y. 423. 
 
 It is admissible both in civil and in criminal cases, and some- 
 times is the most convincing that can be had. People v. Videto, 
 I Park. (N. Y.) 603 ; People v. Davis, 46 N. Y. St. R. 213, 9 N. Y. 
 Crim. 334; affirmed, on opinion below, in 135 N. Y. 646. 
 
 It is not error to refuse to charge that direct evidence is always 
 the most satisfactory. People v. Johnson, 140 N. Y. 350, 55 N. Y. 
 St. R. 783. 
 
 In order to convict on circumstantial evidence, the facts must 
 be such as to exclude every reasonable hypothesis except that of 
 guilt ; the jury must have no reasonable doubt of the essential facts. 
 Lovvenstein's Trial, p. 330 ; Stephens v. People, 4 Park. 396 ; 
 affirmed in 19 N. Y. 549; People v. Harris, 136 N. Y. 423, 49 
 N. Y. St. R. 751 ; People v. Kelly, 11 App. Div. 495 ; appeal dis- 
 missed in 153 N. Y. 651 ; People v. Fitzgerald, 156 N. Y. 253 
 (reversing 20 App. Div. 139), 46 N. Y. Supp. 1020. 
 
 A nonsuit cannot be ordered on the ground that all the evidence 
 is circumstantial. Ross v. New York, 4 Rob. (N. Y.)49. See also 
 People V. Cassm, 42 N. Y. St. R. 133 ; affirmed, on opinion below, 
 in 136 N. Y. 633 ; People v. Hamilton, 137 N. Y. 531, 50 N. Y. 
 St. R. 22. 
 
 " In trials of fact, it will generally be found that ihe factum pro- 
 bandum is either directly attested by those who speak from their 
 own actual and personal knowledge of its existence, or it is to be 
 inferred from other facts, satisfactorily proved. In the former case, 
 the truth rests upon the second ground before mentioned, namely, 
 our faith in human veracity, sanctioned by experience. In the latter 
 case, it rests on the same ground with the addition of the experi- 
 enced connection between the collateral facts thus proved and the
 
 ^Glf AMERICAN NOTES. 
 
 fact wlucli is in controversy ; constituting the third basis of evidence 
 before stated. 
 
 "The facts proved arc in both cases directly attested. In the 
 former case, tiie proof apphes ininicdiately to \\\^ factum proban- 
 (ium, witliout any intervening process, and it is therefore called 
 direct or /(wV/rr testimony. In the latter case, as the proof ap- 
 plies immediately to collateral facts, supposed to have a connec- 
 tion, near or remote, with the fact in controversy, it is termed 
 circumstantial : and sometimes, but not with entire accuracy, 
 presumptive.'^ Greenleaf on Evid. § 13. 
 
 That much testimonial evidence involves the same sort of infer- 
 ences as does circumstantial is thus illustrated by Chief Justice 
 Gibson in Com. v. Harman, 6 Am. Law Journal, 123. "You see 
 a man discharge a gun at another ; you see the Hash, you hear 
 the report, you see the person fall a lifeless corpse ; and you infer 
 from all these circumstances that there was a ball discharged from 
 the gun, which entered his body and caused his death, because 
 such is the usual and natural cause of such an effect. But you 
 did not see the ball leave the gun, pass through the air, and enter 
 the body of the slain, and your testimony to the fact of killing is, 
 therefore, only inferential, — in other words, circumstantial. It is 
 possible that no ball was in the gun ; and we infer that there 
 was, only because we cannot account for the death on any other 
 supposition." 
 
 Direct evidence is not required to prove adultery ; circumstan- 
 tial evidence will be sufficient if the opportunity and the will to 
 commit the crime are established. Berckmans v. Berckmans, 16 
 N. J. Eq. 122, 17 N. J. Eq. 453; Day v. Day, 4 N. J. Eq. 444; 
 Adams v. Adams, 17 N. J. Eq. 324. 
 
 Presumptions. 
 
 "I use the word 'presumption' in the sense of a presumption 
 of law cai)able of being rebutted. A presumption of fact is simply 
 an argument. A conclusive presumption I describe as conclusive 
 proof." Stephen's Dig. Evid., Appendix, Note i. 
 
 "A 'presumption' means a rule of law that courts and judges 
 shall draw a particular inference from a particular fact, or from 
 particular evidence, unless and until the truth of such inference is 
 disproved." Stephen's Dig. Evid. Art. i.
 
 AMERICAN NOTES. 46 C 
 
 " Fresumptioji " defined. — " The term ' presumjnion ' is used to 
 signify tliat wliich may be assumed without proof, or taken for 
 granted." Ward v. Metropolitan Life Ins. Co., 66 Conn. 238. 
 
 The conclusion or probable inference drawn in f:u'or of the 
 existence of one fact from others in proof is a legal presumption. 
 Tanner v. Hughes, 53 Pa. St. (P. F. Smith) 289 ; U. S. v. Searcey 
 (D. C), 26 Fed. Rep. 435. 
 
 " A presumption, or a i)robability, — for in this connection these 
 words mean the same thing, — is an inference as to the existence 
 or non-existence of one fact from the existence or non-existence 
 of some other fact, founded on a previous experience of that con- 
 nection." Fay V. Reynolds, 60 Conn. 220. 
 
 Conclusive Frcsiimptions. 
 
 "Conclusive, or, as they are elsewhere termed, imperative, or 
 absolute presumptions of law, are rules determining the quantity of 
 evidence requisite for the support of any particular averment which 
 is not permitted to be overcome by any proof that the fact is 
 otherwise." Greenleaf on Evid. § 15. 
 
 " A sane man is conclusively presumed to contemplate the 
 natural and probable consequences of his own acts ; and therefore 
 the intent to murder is conclusively inferred from the deliberate 
 use of a deadly weapon." Greenleaf on Evid. § 18. 
 
 Pnstonptions of Law. 
 
 " Presumptions of law consist of those rules which in certain 
 cases either forbid or dispense v/ith any ulterior inquiry." Green- 
 leaf on Evid. § 15. 
 
 Presumptions of Fact. 
 
 " Presumptions of fact, usually treated as comprising the second 
 general head of presumptive evidence, can hardly be said, with 
 propriety, to belong to this branch of the law. They are, in truth, 
 but mere arguments, of which the major premise is not a rule of 
 law ; they belong equally to any and every subject matter, and 
 are to be judged by the common and received tests of the truth 
 of propositions and the validity of arguments. They depend 
 upon their own natural force and efificacy in generating belief or 
 conviction in the mind, as derived from those connections, which
 
 461/ AMERICAN NOTES. 
 
 are shown by experience, irrespective of any legal relations. They 
 differ from presumi)tions of law in this essential respect, that while 
 those are reduced to fixed rules, and constitute a branch of the 
 particular system of jurisprudence to which they belong, tliese 
 merely natural presumptions are derived wholly and directly from 
 the circumstances of the particular case, by means of the common 
 experience of mankind, without the aid or control of any rules of 
 law whatever." Clreenleaf on Evid. § 44. 
 
 " Natural presumption is that process of reasoning which the 
 mind of any person of ordinary intelligence is competent to exer- 
 cise, and which it naturally will and constantly does exercise in 
 arriving at the belief of the truth of any desired fact by the aid or 
 through the medium of one or more other facts. The reasoning 
 employed is of the description known as probable, and it is 
 founded on the ordinary and usual course of things according to 
 which, the fact known and the fact sought, or facts of the same 
 character, have been previously known, observed, or understood 
 to be in some way connected together." Burrill on Cir. Evid. ix. 
 
 In homicide cases the presumption of malice arises from the 
 use of a deadly weapon. Mitchell v. State (Ala.), 30 So. 348. 
 
 There is a presumption that he who breaks and enters a house 
 of another in the night intends to steal therein. State 7'. Worthen 
 (Iowa), 82 N. VV. 910. 
 
 The conclusion or probable inference drawn in favor of the 
 existence of one fact from others in proof is a legal presumption. 
 Tanner v. Hughes, 53 Pa. St. 289. 
 
 Presiimptio7i Created by Statute. 
 
 A presumption may be created by legislative act even though 
 the cause of action arose out of the State. It is a matter affecting 
 the remedy. Penn. Co. v. McCann, 54 Ohio St. 10; State v. 
 Weston, 3 Low. (Ohio) Dec. 15, i Nisi Prius, 350. 
 
 Congress may create a presumption {e. g., of negligence from 
 the bursting of a boiler). Such presumption will prevail in both 
 State and Federal courts if it refers to a matter within the jurisdic- 
 tion of Congress. Murphy v. Northern Transportation Co., 15 
 Ohio St. 533. 
 
 A disputable presumption may be lawfully created by statute. 
 Howard v. Moot, 64 N. Y. 268.
 
 AMERICAN NOTES. 46 e 
 
 Direct afid Circumstantial Evidence Compared. 
 
 As good a comparison between the two kinds of evidence as can 
 be cited is that of Chief Justice Shaw. " The distinction, then, 
 between direct and circumstantial evidence is this. Direct or 
 positive evidence is when a witness can be called to testify to the 
 precise fact which is the subject of the issue on trial ; that is, in a 
 case of homicide, that the party accused did cause the death ot 
 the deceased. Whatever may be the kind or force of the evi- 
 dence, this is the fact to be proved. But suppose no person was 
 present on the occasion of the death, and, of course, that no one 
 can be called to testify to it ; is it wholly unsusceptible of legal 
 proof? Experience has shown that circumstantial evidence may be 
 offered in such a case ; that is, that a body of facts may be proved 
 of so conclusive a character as to warrant a firm belief of the fact, 
 quite as strong and certain as that on which discreet men are 
 accustomed to act, and in relation to their most important con- 
 cerns. It would be injurious to the best interests of society if 
 such proof could not avail in judicial proceedings. If it was 
 necessary always to have positive evidence, how many criminal 
 acts committed in the community, destructive of its peace and 
 subversive of its order and security, would go wholly undetected 
 and unpunished? 
 
 "The necessity, therefore, of resorting to circumstantial evi- 
 dence, if it is a safe and reliable proceeding, is obvious and abso- 
 lute. Crimes are secret. Most men conscious of criminal pur- 
 poses, and about the execution of criminal acts, seek the security 
 of secrecy and darkness. It is therefore necessary to use all 
 other modes of evidence beside that of direct testimony, provided 
 such proofs may be relied on as leading to safe and satisfactory 
 conclusions ; and, thanks to a beneficent Providence, the laws of 
 nature and the relations of things to each other are so linked and 
 combined together that a medium of proof is often thereby fur- 
 nished, leading to inferences and conclusions as strong as those 
 rising from direct testimony. 
 
 " On this subject I will once more ask attention to a remark in 
 the work already cited. East's Pleas of the Crown, ch. 5, § 11. 
 ' Perhaps,' he says, ' strong circumstantial evidence, in cases of 
 crimes like this committed in the most part in secret, is the most
 
 46/ AMERICAN NOTES. 
 
 satisfactory of any from whence to draw tlic conclusion of guilt; 
 for men may be scducctl to j^erjury by many base motives, to which 
 the secret nature of the offence may sometimes afford a temp- 
 tation ; but it can scarcely happen tlint many circumstances, espe- 
 cially if they be such over which the accuser could have no control, 
 forming together the links of a transaction, should all unfortunately 
 concur to fix the presumption of guik un an individual and yet sucii 
 a conclusion be erroneous.' 
 
 " Each of these modes of i)roof has its advantages and dis- 
 advantages; it is not easy to compare their relative value. The 
 advantage of positive evidence is that it is the direct testimony of 
 a witness to the fact to be proved, who, if he speaks the truth, saw 
 it done ; and the only question is, whether he is entitled to be 
 believed. The disadvantage is, that the witness may be false and 
 corrupt, and that the case may not afford the means of detecting 
 his falsehood. 
 
 " But, in a case of circumstantial evidence, where no witness can 
 testify directly to the fact to be proved, it is arrived at by a series 
 of other facts, which by experience have been found so associated 
 with the fact in question that in the relation of cause and effect 
 they lead to a satisfactory and certain conclusion ; as when foot- 
 prints are discovered after a recent snow, it is certain that some 
 animated being has passed over the snow since it fell ; and, from 
 the form and number of the footprints, it can be determined with 
 equal certainty whether they are those of a man, a bird, or a 
 quadruped. Circumstantial evidence, therefore, is founded on ex- 
 perience and observed facts and coincidences, establishing a con- 
 nection between the known and proved facts and the fact sought to 
 be proved. The advantages are that, as the evidence commonly 
 comes from several witnesses and different sources, a chain of cir- 
 cumstances is less likely to be falsely prepared and arranged, and 
 falsehood and perjury are more likely to be detected and fail of 
 their purpose. The disadvantages are that a jury has not only to 
 weigh the evidence of facts, but to draw just conclusions from 
 them ; in doing which, they may be led, by prejudice or partiality, 
 or by want of due deliberation and sobriety of judgment, to make 
 hasty and false deductions ; a source of error not existing in the 
 consideration of positive evidence. 
 
 " From this view it is manifest that great care and caution oudit
 
 AMERICAN NOTES. 46^ 
 
 to be used in drawing inferences from proved facts. It must be a 
 fair and natural, and not a forced and artificial, conclusion ; as, 
 when a house is found to have been plundered, and there are 
 indications of force and violence upon the windows and shutters, 
 the inference is that the house was broken open, and that the per- 
 son who broke open the house plundered the property. It has 
 sometimes been enacted by positive law that certain facts proved 
 shall be lield to be evidence of another fact ; where it is pro- 
 vided by statute that if the mother of a bastard child gives no 
 notice of its expected birth and is delivered in secret, and after- 
 wards is found with the child dead, it shall be presumed that it was 
 born alive and that she killed it. This is a forced and not a nat- 
 ural presumption prescribed by positive law, and not conformable 
 to the rule of the common law. The common law appeals to the 
 plain dictates of common experience and sound judgment, and the 
 inference to be drawn from the fact must be a reasonable and natural 
 one, and, to be a moral certainty, a certain one. It is not sufificient 
 that it is probable only ; it must be reasonably and morally certain. 
 
 " The next consideration is, that each fact which is necessary to 
 the conclusion must be distinctly and independently proved by 
 competent evidence. I say, every fact necessary to the conclu- 
 sion ; because it may and often does happen that, in making out 
 a case on circumstantial evidence, many facts are given in evi- 
 dence, not because they are necessary to the conclusion sought 
 to be proved, but to show that they are consistent with it and not 
 repugnant, and go to rebut any contrary presumption." Com. v. 
 Webster, 5 Cush. 295, 310. 
 
 The testimony of a person as to his own signature is of no 
 higher character than the testimony of another who is acquainted 
 with his handwriting. Lefferts v. State, 49 N. J. L. 26. 
 
 Circumstantial evidence has frequently been used to discredit 
 the direct evidence of witnesses, and in many cases has entirely 
 overcome the weight of the direct evidence. See Nelson v. 
 U.S. Fed. Cas. 10116, where a vessel and cargo were forfeited 
 for breach of the importation laws, notwithstanding the positive 
 evidence of several witnesses. 
 
 Circumstantial evidence may be equally as convincing as is 
 direct testimony, and in such case the law gives it as much weight. 
 Noughon V. State, 57 Ga. 102.
 
 46// AMERICAN NOTES. 
 
 Circumstantial evidence is said to he as good as any otlier in 
 West 7'. State. 76 Ala. 9S ; Lancaster v. State, 91 Tenn. 267 ; Cur- 
 fan 7'. Perceval, 21 Neb. 434. 
 
 Direct FA'idence Preferred. 
 
 In Rest on Presumptions, § 193, it is said, " Abstractly speaking, 
 presumptive evidence is inferior to direct evidence, seeing that it 
 is, in truth, only a substitute for it, and an indirect mode of prov- 
 ing that which otherwise could not be proved at all." 
 
 " The precedence of the former (direct evidence), therefore, 
 rests on grounds of natural propriety and reason, too obvious to be 
 dwelt upon ; and it is a precedence which the rules of evidence 
 themselves constantly recognize. Where direct evidence is attain- 
 able, circumstantial evidence is of a secondary nature ; and no 
 greater discredit can be thrown upon the latter, even in civil cases, 
 than where it is attempted to be used in cases where (he former, 
 if attainable, is wilfully withheld." Burrill on Circumstantial 
 Evid. 225. 
 
 In Ingalls v. State, 48 Wis. 647, holding that intoxication may 
 be proved to show the improbability of defendant's having com- 
 mitted a crime, it is said, " Evidence of this kind would have but 
 little weight against direct evidence showing the actual presence of 
 the accused at the time and place when and where the crime was 
 committed." 
 
 Disthictions likely to Confuse the Jury. 
 
 It is very generally maintained that the jury should not be given 
 any instructions whatever distinguishing between circumstantial 
 and direct evidence in regard to the weight to which they are 
 entitled. In State v. Rome, 64 Conn. 329, the Court says: 
 " The conclusion reached that, for the practical purposes of a trial, 
 an attempt in instructions to juries to classify evidence as direct 
 and circumstantial, making different rules as applicable to each, 
 would serve 'only to confuse and divert the minds of the jury from 
 the single legitimate question — does the evidence in this case 
 satisfy you of the guilt of the accused, beyond any reasonable 
 doubt ? ' — is sound." 
 
 And see the instructions of the trial court quoted at length and
 
 AMERICAN NOTES. 46 / 
 
 approved in this case, and also approved in State v. Kelly, 77 
 Conn. 266. 
 
 The court should not instruct the jury that circumstantial evi- 
 dence is inferior to direct. Cook v. State (iMiss), 28 So. 833. 
 
 Bofh Kinds of Evidence Fallible and Both Indispensalde. 
 
 " On a final review of the two opinions of the merits of circum- 
 stantial evidence, which have been considered in the present chap- 
 ter, it will be seen that truth occupies the portion of a mean between 
 both. The character of the two species of evidence, in behalf of 
 which they have respectively been advocated, may be summed up 
 in tiiC single remark, that while both, as merely human instruments, 
 are confessedly and unavoidably fallible, both, as instruments of 
 justice, are nevertheless indispensable." Burrill on Cir. Evid. 234. 
 
 In Com. V. Harman, 4 Pa. 296, Chief Justice Gibson says : 
 " No witness has been produced who saw the act committed ; and 
 hence it is argued for the prisoner, that the evidence is only cir- 
 cumstantial, and consequently entitled to a very inferior degree of 
 credit, if to any credit at all. But that consequence does not 
 necessarily follow. Circumstantial evidence is, in the abstract, 
 nearly, though perhaps not altogether, as strong as positive evi- 
 dence ; in the concrete it may be infinitely stronger. A fact 
 positively sworn to by a single eye-witness of blemished character 
 is not as satisfactorily proved as is a fact which is the necessary 
 consequence of a chain of other facts sworn to by many witnesses 
 of undoubted credibility. . . . The only difference between pos- 
 itive and circumstantial evidence is, that the former is more im- 
 mediate, and has fewer links in the chain of connection between 
 the premises and conclusion ; but there may be perjury in both. 
 A man may as well swear falsely to an absolute knowledge of a 
 fact as to a number of facts from which, if true, the fact on which 
 the question of innocence or guilt depends must inevitably follow. 
 No human testimony is superior to doubt. The machinery of 
 criminal justice, like every other production of man, is necessarily 
 imperfect, but you are not therefore to stop its wheels. Because 
 men have been scalded to death or torn to pieces by the bursting 
 of boilers, or mangled by wheels on a railroad, you are not to lay 
 aside the steam-engine. Innocent men have doubtless been con- 
 victed and executed on circumstantial evidence, but innocent men
 
 af^j AMERICAN NOTES. 
 
 liavc sometimes been convicted and executed on what is called 
 positive proof. Wliat then? Such convictions are accidents 
 which must be encountered, and the innocent victims of them have 
 perished for the common good, as much as soldiers who have per- 
 ished in batde. All evidence is more or less circumstantial, the 
 difference l)eing only in the degree: and it is sufficient for the 
 purpose when it excludes disbelief; that is, actual and not tech- 
 nical disbelief, for he who is to pass on the question is not at lib- 
 erty to disbelieve as a juror while he believes as a man. 
 
 " It is enough that his conscience is clear. Certain cases of cir- 
 cumstantial proof to be found in the books, in which innocent per- 
 sons were convicted, have been pressed on your attention. These, 
 however, are few in number, and they occurred in a period of some 
 hundreds of years, in a country whose criminal code made a great 
 variety of offences capital. The wonder is that there have not 
 been more. They are constantly resorted to in capital trials to 
 frighten juries into a belief that there should be no conviction on 
 merely circumstantial evidence. But the law exacts a conviction 
 wherever there is legal evidence to show the prisoner's guilt be- 
 yond a reasonable doubt ; and circumstantial evidence is legal 
 evidence-" 
 
 For opinion upholding the use of circumstantial evidence, 
 maintaining its necessity and the correctness of its result, and 
 ridiculing attacks made upon it as being due to either ignorance 
 or vice, see Com. v. Twitchell, i Brewst. (Pa.) 551; Hickory 
 V. U.S., 151 U.S. 303. 
 
 " The eye of omniscience can alone see the truth in all cases : 
 circumstantial evidence is there out of the question ; but clothed 
 as we are with the infirmities of human nature, how are we to get 
 at the truth without a concatenation of circumstances ? Though 
 in human judicature, imperfect as it must necessarily be, it some- 
 times happens, perhaps in the course of one hundred years, that in 
 a few solitary instances, owing to the minute and curious circum- 
 stances which sometimes envelop human transactions, error has 
 been committed from a reliance on circumstantial evidence ; yet 
 this species of evidence, in the opinion of all those who are most 
 conversant with the administration of justice and most skilled in 
 judicial proceedings, is much more satisfactory than the testimony 
 of a single individual who swears he has seen a fact committed."
 
 AxMERICAN NOTES. 46 k 
 
 R. V. Thurtell, 2 Wheeler Cr. Cas. 461, c^ted with approval in 
 People V. Cronin, 34 Cal. 203. 
 
 Comparative Liability to Error. 
 
 As to the comparative liability to error in the cases of circum- 
 stantial and direct testimony, the Court says, in People v. Videts, 
 I Parker Crim. 603 : " Although from the imperfection and uncer- 
 tainty which must ever exist in all human tribunals in vvhicli inno- 
 cent persons have been convicted on presumptive proof, yet from 
 my knowletlge of criminal jurisprudence, both from reading and 
 from observation, I have no hesitation in expressing the opinion 
 that where there has been one unjust conviction upon circum- 
 stantial evidence alone, there may have been three innocent 
 persons condemned upon the positive testimony of perjured 
 witnesses." 
 
 Caution Required. 
 
 " This point has been pressed with great earnestness, and it has 
 been insisted with much zeal that the verdict is without any suf- 
 ficient testimony. The inconclusiveness of circumstantial proof, 
 and the danger to be apprehended from convictions upon that 
 species of evidence, have been dwelt upon with much force. 
 
 " It is certainly true that great care and caution should be used 
 in the investigation of such testimony. This is true also of every 
 other kind. All human testimony may be false. Our own per- 
 ceptions may be wrong ; our own senses may deceive us. Whilst 
 this should teach us caution in the forming of our opinions, and 
 deliberation in adopting conclusions, it should not make us carry 
 our doubts too far, because we should thereby be rendered unfit 
 for all the practical duties of life. Such is the state of things which 
 surround us in life, that in all which concerns ourselves and our 
 highest interest we are compelled to act upon testimony, and 
 often upon that testimony which circumstances afford. The same 
 rule is carried into judicial proceedings. Circumstantial evidence 
 has been received in every age of the common law, and it may rise 
 so high in the scale of belief as to generate full conviction. When 
 after due caution this result is reached, the law authorizes its min- 
 isters to act upon it." McCann v. State, 13 Smedes & M. (Miss.) 
 471, 489.
 
 46 / AMERICAN NOTES. 
 
 U/iitiie Weight to Trivial Facts. 
 
 All courts agree that great care should be exercised in drawing 
 inferences from circumstantial evidence, antl there may be some 
 dangers inciilent to it that do not exist in the case of direct testi- 
 mony. In Moore v. State, 2 Ohio St. 500, 507, tiie Court says: 
 " We would remark, that it is one of the difficulties necessarily 
 attending tiie investigation of a case where the j^roof is not pos- 
 itive, but has to be drawn from a chain of circumstances, that too 
 much stress is frecjuently laid on trivial circumstances, when sus- 
 picion has once been aroused and harsh and erroneous conclusions 
 frecjuently tlrawn against the accused. And a careful judge will 
 always instruct the jury, that, where the circumstances are recon- 
 cilable upon the theory of the accused's innocence, they are bound 
 so to treat them. It is only when the facts and circumstances are 
 irreconcilable with his innocence that he can be convicted." 
 
 Proof of Venue by Circumstantial Evidence. 
 
 Circumstantial evidence alone may be sufficient to establish the 
 venue of a crime. Burst %>. State, 89 Ind. 133 ; Weinecke v. 
 State, 34 Neb. 14 ; Tinney v. State, 1 1 1 Ala. 74 ; State v. Benson, 
 22 Kan. 471; State v. Hill, 98 Mo. 357; Abrigo v. State, 29 
 Tex. App. 143. But see Franklin v. State, 64 Tenn, 613. 
 
 Proof that an offence was committed in the witness's house 
 and that the house is in a certain place is sufficient proof of venue. 
 Porter v. People, 158 111. 370. 
 
 But it is not enough to show that the owner of a certain saloon 
 that had been broken into lives in a certain place, and that he owns 
 the saloon building. The venue of the building must be shown. 
 Harlan v. State, 134 Ind. 339. 
 
 No presumption that a homicide occurred in a certain county is 
 raised by proof that the inquest was held there. Dobson v. State, 
 17 S. W. 3. 
 
 Sources of Circumstantial Evidence. 
 
 " This indirect evidence is sometimes drawn from the expe- 
 rience which enables us to trace a connection between an ascer- 
 tained collateral fact and the fact otlierwise undetermined ; and 
 it is more or less cogent as this connection is known to be more
 
 AMERICAN NOTES. 46 171 
 
 or less natural and frequent. When antecedent experience shows 
 this mutuality of relation to be constant or with a great degree 
 of uniformity, the inference deducible, it is said, is properly 
 termed a presumption. But this species of proof embraces a 
 far wider scope than this. It in fact includes all evidence of an 
 indirect nature, whether the inferences afforded by it be drawn 
 from prior experience or be a deduction of reason from the cir- 
 cumstances of the particular case, or of reason aided by expe- 
 rience. In the latter aspect is a conclusion the value of which 
 obviously depends on the force and directness with which it is 
 derived from the premises concealed or proved." Stevenson v. 
 Stewart, 11 Pa. 308. 
 
 Classification of Ctraifnstantial Evidence. 
 
 "The relations and coincidences of facts with each other, from 
 which reasonable inferences may be drawn, are some of a physical 
 or mechanical, and others of a moral, nature. Of the former, some 
 are so decisive as to leave no doubt ; as, where human footprints 
 are found on the snow, the conclusion is certain that a person has 
 passed there ; because we know, by experience, that that is the 
 mode in which such footprints are made. A man is found dead, 
 with a dagger-wound in his breast ; this being the fact proved, 
 the conclusion is, that his death was caused by that wound, be- 
 cause we know that it is an adequate cause of death, and no other 
 cause is apparent. . . . 
 
 " These are cases where the conclusion is drawn from known 
 relations and coincidences of a physical character. But there are 
 those of a moral nature, from wnich conclusions may as legiti- 
 mately be drawn. The ordinary feelings, passions, and propensi- 
 ties under which parties act are facts known by observation and 
 experience; and they are so uniform in their operation that a con- 
 clusion may be safely drawn, that if a person acts in a particular 
 manner he does so under the influence of a particular motive." 
 Shaw, C. J., in Com. v. Webster, 5 Cush. 295, 314. 
 
 '• A third basis of evidence is the known and experienced con- 
 nection subsisting between collateral facts or circumstances, satis- 
 factorily proved, and the fact in controversy. This is merely the 
 legal application, in other terms, of a process familiar in natural 
 philosophy, showing the truth of an hypothesis by its coincidence
 
 46 ;/ AMERICAN NOTES. 
 
 with existing phenomena. The connections and coincidences to 
 which we refer may be either physical or moral ; and the knowl- 
 edge of them is derived from the known laws of matter and mo- 
 tion, from animal instincts, and from the physical, intellectual, and 
 moral constitution anil habits of men. Their force depends on 
 their sufficiency to exclude every other hypothesis but the one 
 under consideration." Greenleaf on Kvid. i6 ed. § ii. 
 
 Professor Wigmore classifies circumstantial evidence by first 
 dividing facta probanda into three groups : I. A Human Act ; 
 II. A Human Quality, Condition, or State; III. A Fact or Con- 
 dition of External Nature ; and then arranging the evidentiary 
 facts into — A. Prospectant ; B. Concomitant ; C. Retrospectant. 
 Under A. are classified Character, Design, Motive, etc., pointing 
 as they do to future acts. An alibi is placed under B. ; and Con- 
 sciousness of Guilt under C, since from it a past act is to be 
 inferred. Wigmore on Evidence, § 43.
 
 CHAPTER III. 
 
 INCULPATORY MORAL INDICATIONS. 
 
 Although, for reasons which have been explained, 
 a complete enumeration of facts as invariably con- 
 joined with authoritative presumptions would be 
 impracticable, it is important, in illustration of the 
 general principles which determine the relevancy 
 and effect of circumstantial evidence, to notice some 
 particulars of moral conduct, frequently brought to 
 light in courts of criminal jurisdiction, which are 
 both popularly and judicially considered as leading 
 to important and well-grounded presumptions 
 
 These circumstances may be considered under the 
 heads of motives to crime, declarations or acts indica- 
 tive of guilty consciousness or intention, preparations 
 for the commission of crime, possession of the fruits 
 of crime, refusal to account for appearances of sus- 
 picion, or unsatisfactory explanations of such appear- 
 ances, evidence indirectly confessional, the suppression, 
 destruction, simulation, and fabrication of evidence, 
 statutory presumptions, and scientific testimony. 
 
 Section i. 
 
 motives to crime. 
 
 As there must pre-exist a motive to every volun- 
 tary action of a rational being, it is proper to 
 comprise in the class of moral indications, such 
 particulars of external relation as are usually observed
 
 48 INCULPATORY MORAL INDICATIONS. 
 
 to operate as inducements to the commission of 
 crime, as well as such indications from language and 
 conduct as mc^re directly and unequivocally manifest 
 a connection between the deed and the mind of the 
 actor. In strictness the word "motive," though 
 popularly applied to denote the objects calculated 
 to act on the mind, ought to be limited to the desig- 
 nation of such objects only as have actually influenced 
 the will, and have thus been the efficient causes of 
 moral action. 
 
 The metaphorical origin of this word has given 
 rise to serious misconception as to the nature of 
 moral and legal responsibility, upon which it is 
 essential that our conceptions should be accurate. 
 From its primary application to material force, an 
 imaginary analogy has been supposed between the 
 action of moral and physical agencies. In reality, 
 however, there is no resemblance between the 
 definite constraint of mechanical power and the 
 influence of motives on the self-oriijinatino- will 
 of an intelligent and free agent. Man is not the 
 passive subject of necessity or chance ; nor are his 
 moral judgments merely the abstractions of logic : 
 on the contrary, he is endowed with instincts, 
 passions, and affections, and above all with reason, 
 and the capacity of estimating the qualities and 
 tendencies of his volitions and actions, and with the 
 power of choosing from among the various induce- 
 ments, emotional and rational, which are presented 
 to him, the governing principles of his conduct (a). 
 
 {a) 6 Stewart's collected Works, 349 ; Cousin, Cours de I'Hist. de 
 la Philosophic, prem. ser. tome 4, Le$on xxiv.
 
 MOTIVES TO CRIME. 
 
 49 
 
 These considerations constitute the foundation of 
 moral and legal responsibility ; and it follows from 
 them, that in all their important actions we naturally, 
 reasonably, and safely judge of men's motives by 
 their conduct, as we conclude from the nature of the 
 stream the qualities of its source. It is indispensable, 
 therefore, in the investigation of imputed guilt to 
 look at all the surrounding circumstances which con- 
 nect the actor with other persons and things, and may 
 have operated as motives and influenced his actions. 
 
 The common inducements to crime are, the desire 
 of revenofingf some real or fancied wrono- ; of cfettinof 
 rid of a rival or an obnoxious connection ; of escap- 
 ing from the pressure of pecuniary or other obli- 
 gation or burden ; of obtaining plunder or other 
 coveted object ; of preserving reputation, either that 
 of general character or the conventional reputation 
 of profession or sex ; or of gratifying some other 
 selfish or malignant passion. But it is of the essence 
 of moral weakness that it forms a mistaken estimate 
 of present good, and a want of proportion will there- 
 fore of necessity be found between the objects of 
 desire and the means employed to obtain them. The 
 assassin's dagger may be put in requisition for a few 
 pieces of gold, and the difference between that and 
 other inducements to crime is a difference only of 
 degree. In a sense indeed, and tried by the standard 
 of absolute morality, there can be no such thing as 
 an adequate motive to the commission of crime. 
 
 It is always a satisfactory circumstance of cor- 
 roboration when, in connection with convincing facts 
 
 C.E. E
 
 50 INCULPATORY MORAL INDICATIONS. 
 
 of coiKluct, an apj)arcnt motive can be assigned ; 
 hut, as the operations of the mind are invisible and 
 intanL^il)le, it is impossible to g"o further; and it 
 must be remembered that there may be motives 
 which no human being but the party himself can 
 divine. Nor must undue importance be attached 
 to external circumstances supposed to be indicative 
 of g'lilty motive, for there are fttw men to whom 
 some or other of the forms of crime may not 
 apparently prove advantageous. Neither ought the 
 existence of such apparent inducements to supersede 
 the necessity for the same amount of proof as would 
 be deemed necessary in the absence of all evidence 
 of such a stimulus. Suspicion, too readily excited by 
 the appearance of supposed inducement, is incom- 
 patible with that even and unprejudiced state of 
 mind which is indispensable to the formation of 
 correct and sober judgment. While true it is, that 
 frequently " imputation and strong circumstances 
 . . . lead directly to the door of truth," it is equally 
 true that entirely to penetrate the mind of man is 
 out of human power, and that circumstances which 
 apparently have presented powerful motives, may 
 never have acted as such. Who can say that some 
 " uncleanly apprehension," some transient thought 
 of sinister aspect, in the dimness of moral light 
 momentarily mistaken for good, may not floac un- 
 bidden across the purest mind ? And how often 
 is it that man has no control over circumstances 
 of apparent power over his motives .'* 
 
 It follows from the foregoing remarks, that 
 evidence of collateral facts which may appear to
 
 MOTIVES TO CRIME. 5I 
 
 have presented a motive for a particular action de- 
 serves pel" se no weight. With motives merely, 
 the legislator and the magistrate have nothing to 
 
 do ; ACTIONS, AS THE OBJECTS OR RESULTS OF MOTIVES, 
 
 are the only legitimately cognizable subjects of human 
 laws. Actus 11071 facit reiim nisi mens sit rea, is a 
 maxim of reason and justice not less than of positive 
 law (d). Motives and their objects differ, it has been 
 remarked, as the springs and wheels of a watch differ 
 from the pointing of the hour, being mutually related 
 in like manner {c). But such evidence is most 
 pertinent and important when clearly connected with 
 declarations which demonstrate that the particular 
 motive has passed into action, or with inculpatory 
 moral facts which it tends to explain and co-ordinate, 
 and which would otherwise be inexplicable. 
 
 The particulars of external relation and moral 
 conduct will in general correctly indicate the 
 character of the motive in which they have 
 originated. On the other hand, the entire absence 
 of surrounding circumstances, which on the ordinary 
 principles of human nature may reasonably be sup- 
 posed to have acted as an inducing cause, is justly 
 regarded, whenever upon the general evidence the 
 imputed guilt is doubtful, as affording a strong pre- 
 sumption of innocence. 
 
 It occasionally happens that actions of great 
 
 {b) 3 Inst. 107. For a discussion of the meaning and extent of this 
 maxim, see Reg. v. Tolsoft, 23 Q. B. D. 168. See Uifra, pp. 1 3 1 - 1 36. As 
 to the use of the word motive in this passage, see note at p. 45, supra. 
 
 {f) Hampden's Lectures on Moral Philosophy, 241. 
 
 E 2
 
 52 INCULPATORY MORAL INDICATIONS. 
 
 enormity are committed, for wliich no apparent 
 motive is discoveraMe. It must not be concluded, 
 however, that no pre-existent motive has operated ; 
 and upon principles of reason and justice essential 
 to common security, the actor is held to be legally 
 accountable for his actions, unless it be clearly and 
 indubitably shown that he is bereft of reason and 
 moral power. A sense of injury, and long-cherished 
 feelings of resentment, may ultimately induce a 
 state of mind independent of self-restraint, and 
 render their victim the sport of ungovernable im- 
 pulses of passion [d) ; but the distinction is evident 
 and just between such actions as are the conse- 
 quences of a voluntary abdication of moral control, 
 and actions committed under the over-mastering 
 power of a delusion of the imagination, which, 
 though groundless, operates upon the mind with 
 all the force of reality and necessity (e). 
 
 On a trial for murder. Lord Chief Justice Camp- 
 bell thus summed up the doctrine under discussion : 
 " With respect to the alleged motive, it is of great 
 importance to see whether there was a motive for 
 committing such a crime, or whether there was not ; 
 or whether there is an improbability of its having 
 been committed so strong as not to be overpowered 
 
 {d) Rex V. Earl Ferrers, ig St. Tr. 885. If the confession of 
 Constance Kent (_Ann. Reg. 1865, p. 230) be accepted, Jier only motive 
 for the dehberate murder of her infant half-brother was a desire to 
 revenge some slighting remarks made by her stepmother as to the 
 first family. She acknowledged that she had received the greatest 
 kindness from her stepmother. 
 
 (<?) Rexv. Hadjidd, 27 St. Tr. 12S1 ; Rex v. Margin, York Sp. Ass. 
 1831, Shorthand Report by Fraser ; Rexv. Offord^ 5 C. & P. 168.
 
 MOTIVES TO CRIME. 53 
 
 by positive evidence. But if there be any motive 
 which can be assigned, I am bound to tell you 
 that the adequacy of that motive is of little im- 
 portance. We know, from the experience of criminal 
 courts, that atrocious crimes of this sort have been 
 committed from very slight motives ; not merely 
 from malice and revenge, but to gain a small 
 pecuniary advantage, and to drive off for a time 
 pressing difficulties " (y^). 
 
 It is a general rule for the interpretation of 
 conduct as indicative of motives, demanded by 
 social security and founded in substantial justice, 
 that every man shall be held to have intended, and 
 therefore to be legally accountable for, the natural 
 and probable consequences of his actions [g-) ; and 
 no one can be permitted to speculate with impunity 
 upon the precise extent to which he may securely 
 carry his mischievous intentions, the reality and 
 degree of which it is alike impossible to determine. 
 If therefore the motive have been to commit, not 
 the particular crime, but another of equal legal 
 degree, then the maxim applies that in criminalibus 
 sufficit generalis m ilitia iiitentionis ciLiii facto parts 
 gradus (/^), " All crimes," says Bacon, " have their 
 conception in a corrupt intent, and have their 
 
 i> 
 
 (/) Reg. V. Palmer., Shorthand Report at p. 308. Central Criminal 
 Court, May, 1856. The details of the case are set out at length, infra., 
 pp. 344-351. As to the use of the word motive in this, the next and 
 some later passages, see note at p. 45, supra. 
 
 {g) Rex V. Farringion, R. & R. at p. 207 ; Rex v. Harvey, 2 B. & 
 C. 257 ; Rexv. Dixon, 3 M. & S. 11. 
 
 {h) Bacon's Maxims of the Law, Regula xv. (Bacon's Works, 
 edited by Spedding, Ellis and Heath, 1859, vol. vii.).
 
 54 INCULPATORY MORAL INDICATIONS. 
 
 consummation and issuing in some particular fact, 
 which though it be not the fact at which the intention 
 of tlie malefactor levelled, yet the law giveth him 
 no advantage of the error, if another particular 
 ensue of as high a nature. Therefore if an im- 
 poisoned apple be laid in a place to impoison I. S., 
 and I. D. cometh by chance and eateth it, this 
 is murder in the principal, that is actor, and yet 
 the malice in individuo was not against I. D. "(z). 
 " In capital causes," declares the same high authority, 
 " in favorem vitcB, the law will not punish in so high 
 a degree, except the malice of the will and intention 
 do appear " {k). But nevertheless the rule under 
 discussion has been extended beyond all reasonable 
 application, as where two persons were convicted of 
 lying in wait and slitting the prosecutor's nose with 
 intent to maim and disfigure, an offence then capital 
 by the statute 22 & 23 Car. II. c. i, though the 
 real intention was to commit murder, in order to 
 obtain an estate, an offence not capital, and there 
 v/as no such special intent as the statute re- 
 quired (/) ; a case which, as extending a criminal 
 law by equity, is inconsistent with the general 
 principles of jurisprudence, and with the spirit of 
 many later cases (w). 
 
 (J) Bacon, ib. Regula xv. 
 
 {k) Id. Regula vii. 
 
 (/) Rex V. VVoodburne and Coke, 16 St. Tr. 54. 
 
 (;«) 4 Lord Campbell's Lives of the L. Ch. 601 ; Rex v. Bell, Foster's 
 Discourses on the Crown Law, 3rd ed. 1792, App. p. 430; Rex 
 V. Carroll, East, P. C. 394, 397, 398, 400, 402 ; Rex v. Duffin, 
 R. & R. 365.
 
 guilty consciousness or intention. 55 
 
 Section 2. 
 
 declarations and acts indicative of guilty 
 consciousness or intention. 
 
 It is very common with persons who have been 
 engaged, or are about to engage, in crime, to make 
 obscure or mysterious allusion to their criminal acts 
 or purposes, or to boast to others whose standard of 
 moral conduct is the same as their own, of what 
 they have done or will do, or to give vent to expres- 
 sions of revengeful feelinors or of malio-nant satisfac- 
 tion at the accomplishment or anticipated occurrence 
 of some serious mischief. Such declarations or 
 allusions are of great moment when clearly connected 
 by independent evidence with some anterior or 
 subsequent criminal action. 
 
 When an act is of such a nature as not necessarily 
 to imply a guilty intention, and such intention is the 
 specific point in issue, then the evidence of decla- 
 rations by the party, or of collateral circumstances, 
 may be of the last importance, as explanatory of his 
 motives and purposes. " Declarations referring to 
 former and existing facts," said Lord Chief Justice 
 Eyre, "are the explanation and connection of those 
 facts which serve to make them intelligible. . . . 
 According to the rules of evidence, what a prisoner has 
 said respecting a particular fact is admissible evidence, 
 not in the nature of a confession, but as evidence of 
 the particular fact ; and it is therefore agreeable to the 
 general law of evidence to receive such declarations 
 in all cases whatever, in order to explain and to
 
 56 INCUI.rATORV MORAL INDICATIONS. 
 
 establish tlu; true st.ite of any matter of fact which is 
 in disi)uic or the subject of inquiry before a jury" {n). 
 
 The just effect of such language in reference to 
 future events is to show the existence of the disposi- 
 liou, from which criminal actions proceed, to render 
 it less improbable that the person proved to have 
 used it would commit the particular offence, and to 
 explain, if it be in itself ambiguous, the motive or 
 object of the contemplated action. But evidence of 
 such language cannot dispense with the obligation 
 of sufficient proof of the criminal facts ; for, though 
 malignant feelings may possess the mind, and lead 
 to intemperate and criminal expressions, they never- 
 theless may exercise but a transient influence without 
 leading to action (<?). It must be borne in mind, 
 too, as in regard to the proof of language in general, 
 that declarations may be obscure in themselves, or 
 imperfectly remembered, and that witnesses may 
 speak without a strict and due regard to truth (/). 
 "Words," says Mr. Justice Foster, "are transient 
 and fleeting as the wind ; they are frequently the 
 effect of sudden transport easily misunderstood, and 
 often misreported " (17). It has been well remarked 
 that, " Mere threats often proceed from temporary 
 irritation without deep-rooted hostility. They indi- 
 cate a rash and unguarded rather than a determinedly 
 malignant character ; and the very utterance of 
 them, as every one well knows, tends to defeat their 
 
 («) See Rex V. Crossjichi, 26 St. Tr. 215. 
 {o) Bentham's Rationale of Jud. Ev. b. 5, c. 4, s. 2. 
 {p) Per Dallas, J., in Rex- v. Tu7'ner, 32 St. Tr. 1 132. 
 {q) Foster's Discourses on the Crown Law, Disc. L ch. i. s. 8, 3rd ed. 
 (1792) p. 204.
 
 GUILTY CONSCIOUSNESS OR INTENTION. 57 
 
 execution. The man who has resolved on a crime 
 is more apt to keep his purpose to himself, or to 
 confide it to an associate, under the seal of secrecy. 
 Even the most wary, however, sometimes let their 
 wicked purposes peep out accidentally in the freedom 
 of companionship, or the weakness of drunken con- 
 fidence. When such unguarded hints, dark and 
 apparently unmeaning at the time, coincide with the 
 subsequent tokens of guilt, they are strong cords in 
 the net of criminating evidence " (r). 
 
 On the principle under consideration, all such 
 relevant acts of the party as may reasonably be 
 considered explanatory of his motives and purposes, 
 even though they may severally constitute distinct 
 felonies, are clearly admissible in evidence. Such 
 evidence is known as " evidence of similar facts " ; 
 and although it is inadmissible where it amounts to 
 evidence of distinct and different offences against 
 other persons, unconnected with and unrelated to the 
 particular act in question, it is held to be relevant, 
 and is frequently received, not for the purpose of 
 showing a predisposition to commit such a crime as 
 the offence charged, but to show the character of 
 the act, or the state of mind with which it was done ; 
 either to show guilty knowledge or a wicked system, 
 or to rebut obvious defences, such as mistake or 
 accident. For these purposes evidence of similar 
 acts, whether previous or subsequent {s) to the act 
 
 (r) I Dickson's Law of Evidence in Scotland, § 269, p. 157- 
 
 (s) In charges of obtaining money by false pretences, it has been 
 
 said that whereas previous acts are admissible {Reg. v. Francis, L. R. 
 
 2 C. C. 1 28) subsequent acts are not. This would seem to have arisen 
 
 from a misunderstanding of Reg. v. Holt (Bell, C. C. 2S0). See
 
 58 INCULPATORY MORAL INDICATIONS. 
 
 charged, may be received on any criminal charge, 
 or in any civil action or proceeding (/). 
 
 Our reports present many illustrations of this 
 rule. A few, however, will explain its legitimate 
 application. Upon a charge of uttering forged 
 bank-notes, knowing tliem to be forged, evidence 
 may be given that the prisoner uttered other forged 
 notes either before or after the uttering of the note 
 in question, or that other forged notes were found 
 upon his person, or that other forged notes of the 
 same kind were found in the bank with the prisoner's 
 handwriting upon them(?/). In the same way upon 
 a charo-e of utterinc: counterfeit coin, knowing^ it to 
 be counterfeit, the facts that other counterfeit coins 
 were found in his pockets (a), or that the prisoner 
 previously or subsequently uttered other counterfeit 
 coin of a similar or different description, although 
 such utterings are the subject of separate indict- 
 ments [y), are admissible in evidence in order to 
 show his guilty knowledge. 
 
 Where upon the trial of a man for setting fire to a 
 stack of straw it appeared that it caught fire by his 
 
 J^e^. V. Rhodes (L. R. 1899, i Q. B. 'j'])^ where subsequent acts were 
 admitted, and Reg. v. Holt was approved. 
 
 (/) " There is no difference, that I am aware of, between the rule in 
 civil and in criminal cases on this subject." Per Grove, J., in Blake v. 
 TJie Albion Life Ass. Co., 4 C. P. D. 94. 
 
 («) See Rex v. IVylie, and Rex v. Tal/ersall, i Bos. & P. N . R. 92, 93, n. ; 
 Rex V. Sunderland, 1 Lewin, C. C. 102, and cases there cited ; Aex v. 
 Ball, I Camp. 324, R. & R. 132 ; and cf. Rex v. Millward, R. & R. 248. 
 
 {x) Reg. V. Jarvis, 25 L. J. M. C. 30. 
 
 {y) Reg. V. Foster or Forster, 24 L. J. M. C. 134 ; 6 Co.x, C. C. 521 ; 
 Reg. V. Weekes, 8 Cox, C. C. 455.
 
 GUILTY CONSCIOUSNESS OR INTENTION. 59 
 
 having fired a gun very near to it, evidence was 
 admitted that the stack had been set fire to the day 
 before, and that the prisoner was very near to it 
 with his gun at the same time (z) ; and in a similar 
 case Mr. Justice Patteson admitted evidence of the 
 prisoner's presence and demeanour at incendiary 
 fires of other ricks the property respectively of two 
 other persons, which occurred the same night, 
 although these fires were the subject of other indict- 
 ments against the prisoner : but the learned judge 
 held that evidence could not be given of threats, 
 statements, and particular acts pointing alone to 
 such other charges, and not tending to explain the 
 conduct of the prisoner in reference to the fire in 
 question (a). And where the question was whether 
 the prisoner set fire to his house accidentally or 
 intentionally in order to obtain the insurance money 
 on it, the fact that two other houses in which he 
 had lived had been burned down, and that he had 
 obtained the money for which they had been insured, 
 is admissible to negative the suggestion of accident (^). 
 With regard to cases of arson, Mr. Justice Erie said 
 that his experience had taught him that indications 
 of guilt were often found in extremely minute cir- 
 cumstances, which were not the less cogent on that 
 account ; that it was to the words whether true or 
 false, by which a man accounted for himself at a 
 critical time, to his conduct when the fire was in 
 progress, to his manner of offering assistance and 
 
 (z) Reg. V. Dosseti, 2 C. & K. 306, cor. Maule, J. 
 
 {a) Reg. V. Taylor, 5 Cox, C. C. 138, and for a precisely similar 
 ruling in arson, see Reg. v. Harris, 4 F. & F. 342. 
 
 {b) Reg. V. Gray, 4 F. & F. 1102, approved in Makin v. The A.-G. 
 /or New South Wales, 1894, App. Cas. 57.
 
 60 INCULPATORY MORAL INDICATIONS. 
 
 Other such particulars, that attention should be directed, 
 and that in the absence of broad facts, such minute 
 circumstances often afforded satisfactory evidence (<:). 
 Upon a charge of maliciously shooting, where the 
 question was whether the act proceeded from acci- 
 dent or design, evidence was admitted that the 
 prisoner had intentionally shot at the same person 
 about a quarter of an hour before (^t'). 
 
 In charges of murder the same rule applies, and 
 two cases referred to at length hereafter afford an 
 illustration. On a charge of murder by administer- 
 ing prussic acid in porter, Mr. Baron Parke admitted 
 evidence that the deceased had been taken ill several 
 months before, after partaking of porter with the 
 prisoner, and said that although this was no direct 
 proof of an attempt to poison, the evidence was 
 nevertheless admissible, because anything tending 
 to show antipathy in the party accused against the 
 deceased was admissible (e) ; and where the charge 
 was of poisoning with strychnine, after proof that 
 the prisoner was possessed of strychnine in capsules, 
 evidence was received by Mr. Justice Hawkins that 
 three other women died from the effects of str) chnine 
 after being intimate with the prisoner, and that he 
 attempted to poison a fourth (/). 
 
 In a recent leading case this subject was fully 
 discussed before the Judicial Committee of the 
 
 (<r) Charge to the Grand Jury, Warwick Spring Assize, 1859. 
 Id) Rexv. Yoke, R. & R. 531. 
 
 {e) Reg. V. Taivell, pp. 313-317, infra; 2 C. & K. p. 309, note. 
 (/) Reg, V. Neill., p. 106, infra.
 
 GUILTY CONSCIOUSNESS OR INTENTION. 6l 
 
 Privy Council, upon an appeal from the Supreme Court 
 of New South Wales. A man named Makin and his 
 wife were tried at Darlinghurst for the wilful murder 
 of an infant child, whose body was found buried in the 
 backyard of a house where the prisoners had lived. 
 They represented to the mother that they were 
 willing to take the child upon payment of a small 
 premium of ^3, as they desired to adopt it, having 
 lost a child of their own ; and they had alleged that 
 they had received only one child to nurse, and had 
 given it back to the parents. Evidence was admitted 
 to prove that several other infants were received 
 from their mothers on similar representations and 
 upon payment of a sum inadequate for their support 
 for more than a very limited period ; and that the 
 bodies of some ten other infants had been found 
 buried in a similar manner in the earden or back- 
 yard of houses where the prisoners had successively 
 lived. The prisoners were found guilty, but the 
 judge deferred sentence until after the argument of 
 a special case, as to whether such evidence was 
 rightly admitted. The Judicial Committee held 
 that the evidence was relevant to the issue to be 
 tried by the jury, and was rightly admitted {£■). 
 
 With regard to charges of receiving property 
 knowing it to be stolen, the same rule was formerly 
 strictly applied (/i). But this subject is now regulated 
 
 (^) Makin v. The A.-G. for New South Wales, 1894, App. Cas. 57, 
 following Reg. v. Geering (i8 L. J. M. C. 215), see p. 322, infra, and 
 Reg. V. Dossett, and Reg. v. Gray, supra, p. 59. 
 
 (Ji) See Reg. v. Bleasdale, 2 C. & K. 765 ; Rex v. Dunn, i Moody, C. C. 
 146 ; Rex V. Davis, 6 C. & P. 177. In Reg. v. Oddy (5 Cox, C. C. 210 ; 
 20 L. J. M. C. 198) evidence of possession by the prisoner (previous
 
 62 INCULPATORY MORAL INDICATIONS. 
 
 by statute, and some restrictions and modifications 
 have been introduced by legislation. By the Pre- 
 vention of Crimes Act, 1871 {i), s. 19, it is enacted 
 that " where proceedings are taken against any 
 person for having received goods knowing them 
 to be stolen, or for having in his possession stolen 
 property, evidence may be given at any stage of the 
 proceedings that there was found in the possession 
 of such person other property stolen within the pre- 
 ceding period of twelve months and such evidence, 
 may be taken into consideration for the purpose of 
 proving that such person knew the property to be 
 stolen, which forms the subject of the proceedings 
 taken against him." This section also allows the 
 proof of any previous conviction (within five years) 
 for fraud or dishonesty, provided seven days' notice 
 of the intention to prove it is given ; and such convic- 
 tion may be taken into consideration for proving 
 that the accused knew the property was stolen. 
 
 This is an abrogation of the strict principles of 
 the law in cases only of receiving stolen property, 
 inasmuch as it is not now necessary to show any 
 connection between the property found in the 
 prisoner's possession and that which is the subject 
 of the charge. But the statute has been confined 
 to reasonable limits, as it has been held that the 
 other property must be found a^ or abottt the time 
 
 to the dateof the alleged receiving) of other goods stolen at other times 
 from other persons, was rejected as inadmissible on a count for either 
 stealing or receiving. On principle this is quite correct, (see per Lord 
 Halsbury, L.C., in Makiti's case, supra), and is still good law except 
 in cases of receivmg covered by the section above quoted. 
 (i) 34 & 35 Vict. c. 112.
 
 GUILTY CONSCIOUSNESS OR INTENTION. 63 
 
 of finding- the stolen property in question, an.l that 
 if it has been disposed of before such finding, 
 evidence as to its possession is inadmissible (k). 
 
 The subject-matter of this section may be summarised as follows : — 
 
 I. The prosecutor may not, for the purpose of showing that the 
 prisoner was likely to have committed the offence charsfcd, give evi- 
 dence, either (a) in the form of statements made by the prisoner, or 
 
 (b) in the form of direct testimony of witnesses, that the prisoner has 
 committed similar but distinct offences or has a disposition to commit 
 such offences. 
 
 II. But the above rule does not exclude evidence of similar offences, 
 (a) wherever such offences are so mixed up with that charged as to 
 form virtually one transaction ; (b) wherever they are relevant to make 
 out any step in the proof of the offence charged ; and especially 
 
 (c) wherever they are relevant to make out guilty knowledge or inten- 
 tion in the commission of the act which is the subject of the charge, 
 or to rebut obvious defences such as accident, mistake, and the like. 
 
 III. The rules of evidence above referred to are quite distinct 
 from the rules of procedure relating to the joinder of distinct offences 
 in several counts in one indictment, and the prosecutor's election. 
 
 It will be found on examination of the cases that it is somewhat 
 difficult in application to distinguish between rules II. (b) and (c) and 
 III. It has been held in certain cases that rule 11. (c) applies 
 where the commission of the physical act charged has been already 
 proved, and it only remains to prove guilty knowledge or intention 
 (see J^e£. v. Fi-ancis, L. R. 2 C. C. R. 108 ; and Blake v. Albion Life 
 Assurance Society, 4 C. P. D. 94). Other cases, however, have 
 gone considerably further. Thus in Reg. v. Geering {\Z L. J. M. C. 
 215, and p. 322, infra) ; Reg. v. Gray (4 F. & F. 1102) ; and Makin v. 
 A.-G. for New South Wales (1894, App. Cas. 57), the evidence was 
 admitted where the question at issue was the commission of the crime 
 as a whole, including the commission of the physical act charged. In 
 the last of these cases it was held that such evidence may be relevant 
 " if it bears upon the question whether the acts alleged to constitute 
 the crime charged in the indictment were designed or accidental, or 
 to rebut a defence which would otherwise be open to the accused." 
 These three decisions show, if any authority were needed, that it is 
 not necessary to the admissibility of such evidence to do more than 
 prove by circumstantial or other evidence a prima facie case against 
 
 {k) See Reg. v. Drage, 14 Cox, C. C. 85; Reg. v. Carter, 12 
 Q. B. D. 522.
 
 64 
 
 INCULPATORY MORAL INDICATIONS. 
 
 the prisoner from which the jury might or might not infer tliat he had 
 committed the physical act charged. It may be said in general that 
 wherever the admissibihty of evidence depends upon the assumption 
 of a fact, or state of things, it is sufficient, in order to render the evi- 
 dence admissil)lc, to <g\\'*t prima facie evidence of the fact or state of 
 tilings. The course of the case cannot be stopped whilst the jury or 
 tribunal determines whether the principal fact or state of things has 
 been proved to its satisfaction. It may at times be difficult to get rid 
 of impressions produced by such evidence if the principal fact or 
 state of things be in the end negatived ; but procedure must follow 
 practical lines, and sufficient confidence must be reposed in the tribunal 
 to assume that it will act rightly under such circumstances. It may 
 also be observed, with regard to such cases as those just mentiotied, 
 that the similar offences were not really distinct^ in the sense that the 
 prisoner's conduct presented the appearance of a regular system or 
 series of offences connected as parts of one scheme, and might there- 
 fore be regarded as all parts of one wicked transaction. For a more 
 detailed discussion of these cases see Archbold's Criminal Pleading, 
 22nd ed. pp. 283 — 287. 
 
 As regards III. — the joinder of distinct offences in one indictment 
 and election between them by the prosecutor — it should be remem- 
 bered that at common law there was no objection, in point of law, to 
 bringing a man charged with several offences, if they were all felonies or 
 all misdemeanours, before a jury and making him answer for the whole 
 at one time. Felonies and misdemeanours could not be tried together, 
 as the challenges and incidents of trial were different, but if they were 
 all felonies or all misdemeanours, there was no legal objection to the 
 joinder. It was, however, found out early in our legal history that 
 such a procedure ope ated unfairly, and the practice arose, from con- 
 venience as well as from a sense of justice, of making the prosecutor 
 elect upon which charge he would proceed, where two or more felonies 
 were joined in the same indictment. In cases of misdemeanours this 
 was by no means a matter of course, but it could be done where many 
 counts were likely to embarrass the prisoner in his trial. See per Lord 
 Blackburn in Castro v. The Queen, L. R. 6 App. Cas. at p. 244. This 
 is the law at the present time, e.xcept that in cases of larceny and 
 embezzlement any distinct number of acts, not exceeding three, may 
 be charged in one indictment, if they have been committed within six 
 months. See 24 & 25 Vict. c. 96, ss. 5, 6, and 71. For a fuller dis- 
 cussion of these topics see Russell on Crimes, 6th ed. vol. ii. pp. 283 
 and 347 et seq.
 
 preparations for the commission of crime. 65 
 
 Section 3. 
 preparations and opportunity for the commission 
 
 OF CRIME. 
 
 Premeditated crime must necessarily be preceded 
 not only by impelling motives, but by appropriate 
 preparations. Possession of the instruments or 
 means of crime, under circumstances of suspicion — 
 as of poison, coining instruments, combustible matters, 
 picklocks, housebreaking instruments, dark-lanterns, 
 or other destructive, criminal or suspicious weapons, 
 
 , materials, or instruments, and many other acts of 
 apparent preparation — are important facts in the 
 judicial investigation of imputed crime. Where a 
 man had in his possession a large quantitv of 
 counterfeit coin unaccounted for, and there was no 
 evidence that he was the maker, it was held to raise 
 a presumption that he had procured it with intent 
 to utter it (/). But the personal character for probity, 
 and the civil station of the party, are highly material 
 in connection with facts of this kind. A medical 
 man, for instance, in the ordinary course of his pro- 
 fession, has legitimate occasion for the possession of 
 poisons, a locksmith for the use of picklocks. In 
 many cases the possession of such materials or 
 
 ' instruments, and other acts indicative of purpose 
 to commit crime, are made by statute prima 
 
 facie presumptions of guilt, and in some even 
 substantive offences {ifi). 
 
 (/) Rex V. Fuller, R. & R. 308. 
 (w) See infra^ s. 8, p. 1 28. 
 C.E. P
 
 66 INCULPATORY MORAL INDICATIONS. 
 
 Facts of the kind referred to become more 
 powerful indications of guilty purpose, if false reasons 
 are assigned to account for them ; as in the case of 
 possessing poison, that it was procured to destroy 
 vermin, which is the excuse commonly resorted to 
 in such cases. 
 
 The bare possession of the means of crime, or 
 other mere acts of preparation, without more con- 
 clusive evidence, are not in general of great weight, 
 because the intended guilt may not have been con- 
 summated ; and until that takes place there is the 
 loais pcenitentice. But as preparations must neces- 
 sarily precede the commission of premeditated crime, 
 some traces of them may generally be expected to 
 be discovered ; and if there be not clear and decisive 
 proof of guilt, the absence of any evidence of such 
 preliminary measures is a circumstance strongly 
 presumptive of innocence. 
 
 Falsehoods and invented stories are frequently 
 told by prisoners before the commission of a crime 
 in order to prepare the minds of their acquaint- 
 ances for the catastrophe, and in cases of some 
 doubt or where natural death or suicide is set up 
 as a defence to a charge of murder, such conduct 
 may prove . more important evidence of guilt than 
 any conduct subsequent to the event. In a case 
 referred to at length hereafter, a medical man was 
 indicted for the murder of his wife by poison, and 
 the defence was accident and negligence in leaving 
 the poison by her side. Perhaps the most striking 
 evidence against him was that he wrote various
 
 PREPARATIONS FOR THE COMMISSION OF CRIME. 67 
 
 letters before his wife's death stating that she was 
 unwell, that she was under the care of two medical 
 men and was apprehensive of a miscarriage, at a 
 time when she was cheerful and well. The evidence 
 as a whole left some doubt in the case, and the 
 prisoner was acquitted (;/). 
 
 At the Central Criminal Court in 1864, before 
 Mr. Justice Byles, Mary Hartley was indicted for 
 the murder of her infant child. The body was dis- 
 posed of in a suspicious manner, but the defence was 
 that the child had died a natural death. The day 
 before the alleged murder, the prisoner wrote a letter 
 in which she stated that her child was dead, whereas 
 at that time and for twelve hours afterwards it was 
 alive and in good health. She was found guilty 
 and sentenced to death [0). 
 
 In 1889 a woman was tried at Warwick and con- 
 victed for administering poison with intent to murder. 
 She had been employed in the house of a medical 
 man, and had put corrosive sublimate into tea and 
 other articles of food which she had prepared for his 
 wife. Amonofst the evidence acjainst her was that 
 she had told the milkman that she did not think 
 the lady — who was at the time indisposed, but not 
 seriously ill — would live. Upon being asked why, 
 she said that she had heard " a token " — the footsteps 
 of a man flying along the landing — that she had 
 opened the door and could not see anything, that 
 she had told the doctor and he said it was a token 
 
 («) A'e^. V. Belaney. See iiijra, pp. 336 — 343. 
 
 {p) Reg. V. Hartley. See the Times, August i8th, 1864, 
 
 F 2
 
 68 INCULPATORY MORAL INDICATIONS. 
 
 of death. She had had no such conversation with 
 him (/). 
 
 In the foreofoinor remarks it is of course assumed 
 that the party possessed the opportiniity of commit- 
 ting the imputed act, without which neither the exist- 
 ence of motives, nor the manifestation of criminal 
 intention by threats or otherwise, followed even by 
 preparations for its commission, can be of any weight. 
 
 Section 4. 
 
 recent possession of the fruits of crime. 
 
 Since the desire of dishonest gain is the impelling 
 motive to theft and robbery, it naturally follows that 
 the possession of the fruits of crime recently after it 
 has been committed, affords a strong and reasonable 
 ground for the presumption that the party in whose 
 possession they are found, was the real offender, 
 unless he can account for such possession in some 
 way consistent with his innocence [q). The force of 
 this presumption has been recognized from the earliest 
 times ; and it is founded on the obvious consideration, 
 that if such possession had been lawfully acquired, 
 the party would be able, at least shortly after its 
 acquisition, to give an account of the manner in which 
 it was obtained ; and his unwillingness or inability 
 
 (^) Reg.x. Sarah Kibbler^^itx\v'\(:i}s.h\x\.ViVi\w Assizes, 17th December, 
 18S9, coram Wills, J. 
 
 (q) Rex V. Bnrdett, 4 B. & Aid. at p. 149 ; Burnett on the Criminal 
 Law of Scotland, p. 555 ; 2 Mascardus De Probationibus, Concl. 
 DCCCXXXiv. ; I Hume's Comm. on the C. L. of Scotland, iii ; Beat 
 on Presumptions (1844), p. 44.
 
 RECENT POSSESSION OF THE FRUITS OF CRIME. 6g 
 
 to afford such explanation is justly regarded as 
 amounting tostrongself-condemnatoryevidence. But 
 it has been ruled, that if the party give a reasonable 
 account of the way in which he became possessed of 
 the property, as by stating the name of the person 
 from whom he obtained it, and such party is known 
 to be a real person, and capable of being easily 
 referred to, it is then incumbent on the prosecutor 
 to show that such account is false. Therefore, where 
 a man was indicted for stealing a piece of wood, 
 which was found in his shop five days after the theft, 
 and he stated that he had bought it from a person 
 whom he named, who lived about two miles off, it 
 was held that the prosecutor was bound to show 
 that the account was false (r). But if the account 
 given be unreasonable or improbable on the face of 
 it, or if the party have given different accounts of 
 the same transaction, then he will not be relieved 
 from the pressure of the general rule of presump- 
 tion (.y). It is, however, in all cases for the jury to 
 judge whether the prisoner has given a sufficiently 
 reasonable account of his doings to put the prosecu- 
 tion upon further inquiry (/), and what effect should 
 be given to any failure to make such inquiry. No 
 absolute or hard-and-fast rule can be laid down upon 
 the subject, and all the circumstances which affect 
 the question whether it was reasonable that a par- 
 ticular line of investigation should be taken up, or 
 which tend to show that injustice has or has not 
 
 (r) Re^. V. Crotvlnirst, i C. & K. 370 ; cf. Reg. v. Sinith, 2 C. & K. 
 207. 
 
 is) Reg. V. Harmer, 3 Cox, C. C. 487 ; Reg. v. Dcbley, 2 C. & K. 818. 
 (/) Reg. V. Hughes, 1 Cox, C. C. 176.
 
 70 INCULPATORY MORAL INDICATIONS. 
 
 been done to the prisoner by the omission to do so, 
 must be taken into consideration and weighed along 
 with the rest of the evidence. 
 
 I. It is manifest that the force of this rule of pre- 
 sumption depends upon the recency of the possession 
 as related to the crime, and that if the interval of 
 time is considerable, the presumption is much 
 weakened, and more especially if the goods are of 
 such a kind as in the ordinary course of things 
 frequently to change hands. From the nature of 
 the case, it is not possible to fix any precise period 
 within which the effect of this rule of presumption 
 can be limited ; it must depend not only upon the 
 mere lapse of time, but upon the nature of the pro- 
 perty, and the concomitant circumstances of each 
 particular case. Where two pieces of woollen cloth 
 in an unfinished state, consisting of about twenty 
 yards each, were found in the possession of the prisoner 
 two months after being missed, and still in the same 
 state, it was held that this was a possession suffi- 
 ciently recent to call upon him to show how he came 
 by the property [iC). In another case, Mr. Justice 
 Bayley directed an acquittal, because the only evi- 
 dence against the prisoner was that the goods were 
 found in his possession after a lapse of sixteen 
 months from the time of their loss {v) ; and where a 
 shovel was found, six months after the theft, in the 
 house of the prisoner, who was not then at home, 
 Mr. Baron Gurney held that on this evidence alone 
 the prisoner ought not to be called upon for his 
 
 («) Reg. V. Partridge, 7 C. & P. 5 5 1, 
 (z/) Rex V. , 2 C. & P. 459.
 
 RECENT POSSESSION OF THE FRUITS OF CRIME. 7I 
 
 defence tv). Where the evidence against a prisoner, 
 charged with the larceny of an axe, a saw and a 
 mattock, was, that tlie stolen articles were found in 
 his possession three months after they were missed, 
 it was held that this was not such a recent possession 
 as />er se to put him upon showing how he came by 
 them {y) ; and where a stolen horse was found in 
 the prisoner's possession six months after it was lost, 
 Mr. Justice Maule held that this was no case to go 
 to the jury [z). But in another case, where three 
 sheets were found upon the prisoner's bed in his 
 house three months after they had been stolen, 
 Mr. Justice Wightman held that the case must go 
 to the jury, on the ground that it was impossible 
 to lay down any rule as to the precise time which 
 was too great to call upon the prisoner to account 
 for the possession {a) ; and where seventy sheep 
 were put upon a common on the i8th of June, but 
 not missed until November, and the prisoner was 
 proved to have had possession of four of them in 
 October, and of nineteen more on the 23rd of 
 November, the judge allowed evidence of the 
 possession of both to be given [b). 
 
 2. It is obviously essential to the just application 
 of this rule of presumption, that the house or other 
 place in which the stolen property is found should 
 be in the exclusive possession of the prisoner. 
 
 (a) Rex V. Cruttenden, Best on Presumptions (1844), p. 306 ; 6 
 Jurist, 267. 
 
 (/) Rex V. Adams, 3 C. & P. 600. 
 
 \z) Reg. V. Cooper, 3 C & K. 318, 
 
 {a) Rex V. Hewlett, 3 Russell on Crimes, 6th ed. p. 355, note (a). 
 
 {p) Rex V. Dewhirst, 2 Starkie on Ev. 3rd ed. p. 614.
 
 72 INCULPATORY MORAL INDICATIONS. 
 
 Where it is founcl in the apartments of a lodger, 
 for instance, the presumption may be stronger or 
 weaker, according as the evidence does or does not 
 show an exclusive possession. As a general rule, 
 where stolen goods are found in the house of a 
 married man, they must be considered in his posses- 
 sion, and not in the possession of his wife, unless 
 there be evidence of something specially to implicate 
 her, such as statements made, or acts done by her, 
 in which case it must be left to the jury to decide in 
 whose possession they were {c). Therefore, where 
 a wife was indicted with her husband for receiving 
 stolen property, and it appeared that she had 
 destroyed the property, it was held to be a question 
 for the jury whether she had so dealt with it, to aid 
 her husband in turning it to profit, or merely to con- 
 ceal his guilt, or screen him from the consequences (d). 
 And where, upon the trial of a man for receiving stolen 
 tin, it was objected that evidence to prove that his 
 wife was seen carrying tin under her cloak from a 
 warehouse on the premises immediately after his 
 arrest, ought not to be received, as the possession 
 was the personal possession of the wife, and ought 
 not to affect the husband, Mr. Justice Coleridge held 
 that it was for the jury to consider whether the 
 wife's was not the prisoner's possession, she being 
 upon the premises, and all the circumstances being 
 taken into consideration, and that it was not like the 
 case where the wife is in possession of stolen property 
 at a distance from the premises of her husband {e). 
 
 {c) Reg. V. Batiks, i Cox, C. C. 238. 
 
 {d) Reg. V. iWClarens, 3 Cox, C. C. 425 ; and Reg. v. Brook, 6 ib. 148. 
 
 {e) Reg. V. Mansfield, Car. & M. 140.
 
 RECENT POSSESSION OF THE FRUITS OF CRIME. "^ }^ 
 
 3. The force of this presumption is greatly in- 
 creased if the fruits of a plurality or of a series of 
 thefts be found in the prisoner's possession, or if the 
 property stolen consist of a number of miscellaneous 
 articles, or be of an uncommon kind, or from its 
 value or other circumstances, be inconsistent with 
 or unsuited to the station of the party. On the trial 
 of two men at Aberdeen autumn circuit, 1824, it 
 appeared that a carpenter's workshop at Aberdeen 
 was broken open on a particular night, and some 
 tools carried off, and that on the same night the 
 counting-houses of Messrs. Davidson and of Messrs. 
 Catto and Co., in different parts of that city, were 
 broken into, and goods and money to a considerable 
 extent stolen. The prisoners were met at seven on 
 the follovvinor morninor in one of the streets of Aber- 
 deen, at a distance from either of the places of 
 depredation, by two of the police. Upon seeing the 
 officers they began to run ; and being pursued and 
 taken, there was found in the possession of each a 
 considerable quantity of the articles taken from 
 Catto and Co., but none of the things taken from the 
 carpenter's shop or Davidson's. But in Catto and 
 Co.'s warehouse were found a brown coat and other 
 articles got from Davidson's, which had not been 
 there the preceding evening when the shop was 
 locked up ; and in Davidson's were found the tools 
 which had been abstracted from the carpenter's. 
 Thus, the recent possession of the articles stolen from 
 Catto and Co.'s proved that the prisoners were the 
 depredators in that warehouse ; while the fact of 
 the articles taken from Davidson's having been left 
 there, connected them with that prior housebreaking ;
 
 74 INCULPATORY MORAL INDICATIONS. 
 
 and a,L;ain, the chisels belonging to the carpenter's 
 shop, found in Davidson's, identified the persons 
 who broke into that last house with those who com- 
 mitted the original theft at the carpenter's. The 
 prisoners were convicted of all tlie thefts (/). A 
 still stronger case of the same kind occurred at 
 Aberdeen, in April, 1826, on the trial of a man who 
 was accused of no fewer than nine different acts of 
 theft by housebreaking, committed in and around 
 that place at various times during the summer of 
 1825 and the following winter. No suspicion had 
 been awakened against the prisoner, who was a 
 carter, living an industrious and apparently regular 
 life, until one occasion, when some of the stolen 
 articles having been detected in a broker's shop, and 
 traced to his custody, a search was made, and some 
 articles from all the houses broken open found 
 amongst an immense mass of other goods, evidently 
 stolen, in a large chest, and about various parts of 
 the prisoner's house. Their number and variety, 
 and the place where they were found, were quite 
 sufficient to convict him of receiving the stolen 
 property ; but as they were discovered at the dis- 
 tance of many months from the times when the 
 various thefts had been committed, the difficulty was 
 how to connect him with the actual theft. The 
 charsfes selected for trial were five in number, and 
 as nearly connected with each other in point of time 
 as possible. In none of them was the prisoner 
 identified as the person who had broken into the 
 
 (/) Rex V. Dow7iie and Milne, Alison's Principles of the Criminal 
 Law of Scotland, vol. i. p. 313; 2 Mascardus De Probationibus, 
 Concl. DCCCXXXI.
 
 RECENT POSSESSION OF THE FRUITS OF CRIME. 75 
 
 houses, although the thief had been seen, and more 
 than once fired at ; but in all the first four house.s 
 which had been broken into, were discovered some 
 of the articles taken from the others, and in the 
 prisoner's custody were found some articles taken 
 from them all, which sufficiently proved that all the 
 depredations had been committed by one person ; 
 and the mark of an iron instrument was found on 
 three of the windows broken open, which coincided 
 exactly with a chisel left in the last house. Two 
 days after the housebreaking of that house, an old 
 watch, part of ihe stolen property, was shown by 
 the prisoner to a shopkeeper, to whom he soon 
 afterwards sold it, and by him delivered up to 
 the officers. Upon this evidence the prisoner was 
 convicted of all the charges of housebreaking (^). 
 
 4. The recent possession of stolen property may 
 sometimes be referable not to the crime of theft, but 
 to that of having received it with a guilty knowledge 
 of its having been stolen. Four persons v/ere found 
 guilty of housebreaking on proof of the recent pos- 
 session of the goods, and narrowly escaped execution, 
 the offence at that time being capital, but it was 
 afterwards ascertained that one of them, who had 
 long been known as a receiver of stolen goods, knew 
 nothing of the robbery until after it had been com- 
 mitted, and had purchased .the goods from the real 
 thieves the day after the robbery iji). The difficulty 
 
 {g) Rex V. Bowman^ Alison's Principles of the Cr minal Law of 
 Scotland, vol. i. p. 314. According to Scotch law, several offences — • 
 not necessarily of the same character — could be included in the same 
 libel. See Alison, vol. ii. p. 23S. 
 
 (ti) Rex V. Ellis, Ann. Reg. 1831 (Chr.), p. 65.
 
 ^6 INCULPATORY MOKAL INDICATIONS. 
 
 of rcfcrriiiL]^ tlic act of possession specifically to either 
 stealing; or receiving frequently led to the failure of 
 justice ; thus, where stolen goods were found shortly 
 after the theft concealed in an old engine-house, and 
 the place being watched, the prisoners were seen to 
 go there; and take them away, yet, being indicted as 
 receivers, they were acquitted ; Mr. Justice Patteson 
 beinc^ of opinion that this- seemed to be evidence 
 rather of a stealing than a receiving (2). These dis- 
 tinctions can seldom now lead to a failure of justice, 
 since by 24 & 25 Vict. c. 96, s. 92 (following an 
 earlier statute), counts for stealing and receiving the 
 same property may be joined in one indictment in 
 respect of the same offence. 
 
 It is not necessary that the receiver of stolen pro- 
 perty should have obtained a guilty knowledge by 
 direct information ; it is sufficient if the circumstances 
 under which it was received were such as must have 
 satisfied any reasonable mind that it must have been 
 dishonestly obtained ; as, if he purchased it at an 
 undue value {k), at suspicious and unseasonable 
 times, or from persons who in the ordinary course of 
 things could not fairly be considered as the unsus- 
 pected owners of property of ihe particular descrip- 
 tion, or has secreted or endeavoured to secrete it, or 
 attempted to explain the manner of acquisition by 
 falsehood or prevarication (/). 
 
 (?) I^ex V. Densley^ 6 C. & P. 399 ; and see Rex v. Dyer, 2 East, 
 P. C. 767 ; and Rex v. Atwell, ib. 76S. 
 (/&) Hale's P. C, vol. i. p. 619. 
 (/) See Alison's Principles of the Criminal Law of Scotland, vol. i.
 
 RECENT POSSESSION OF THE FRUITS OF CRIME. 77 
 
 5. The possession of stolen goods recently after 
 the loss of them, may be indicative not merely of 
 the offence of larceny, or of receiving- with guilty 
 knowledge, but of any other more aggravated crime 
 which has been connected with theft. Upon an 
 indictment for arson, proof that property which was 
 in the house at the time it was burnt, was soon after- 
 wards found in the possession of the prisoner, was 
 held to raise a presumption that he was present and 
 concerned in the offence (w). This particular fact 
 of presumption commonly forms also a material 
 element of evidence in cases of murder ; which 
 special application of it has often been emphatically 
 recognized. It is upon the same principle that a 
 sudden and otherwise inexplicable transition from a 
 state of indigence and a consequent change of habits, 
 or a profuse or unwonted expenditure inconsistent 
 with the position in life of the party, is sometimes 
 a circumstance extremely unfavourable to the sup- 
 position of innocence («). 
 
 6. But the rule must be applied with discrimination, 
 for the bare possession of stolen property, though 
 recent, uncorroborated by other evidence, is some- 
 times fallacious and dangerous as a criterion of guilt. 
 Sir Matthew Hale lays it down, that " if a horse be 
 stolen from A., and the same day B. be found upon 
 him, it is a strong presumption that B. stole him ; 
 yet," adds that excellent lawyer, " I do remember 
 
 (;«) Rex V. Rickinan, 2 East, P. C. 1035 ; and see Rex v. Fuller, 
 R. & R. 308. 
 
 («) Rt-x V. Burdock (murder by poison), Bristol Ass. Ap. \2>2,$,cor. 
 Sir Chas. Wetlierell, Recorder.
 
 78 INCULPATORY MORAL INDICATIONS. 
 
 before a learned and very wary judge, in such an 
 instance B. was condemned and executed at Oxford 
 Assi/.es, and yet within two assizes after, C, being 
 ai)ijrehcnded for another robbery, and convicted, 
 upon his judgment and execution confessed he was 
 the man that stole the horse, and being closely pur- 
 sued, desired B., a stranger, to walk his horse for 
 him, while he turned aside upon a necessary occa- 
 sion, and escaped ; and B. was apprehended with the 
 horse and died innocently " {0). A very similar case 
 occurred at the Surrey Summer Assizes, 1827, where 
 a young man was convicted of stealing two oxen. 
 The prisoner, having finished his apprenticeship to 
 a butcher at Monkwearmouth, went to visit an uncle 
 at Portsmouth, from whence he set out to return 
 to London. On the road between Guildford and 
 London, about three o'clock in the morning, he 
 overtook a man riding upon a pony and driving two 
 oxen, who finding that he was going to London, 
 offered him five shillino^s to drive them for him to 
 London, which he agreed to do, the man engaging 
 to meet him at Westminster Bridge. At Wands- 
 worth he was apprehended by the prosecutor's son, 
 and charged with stealing the oxen. On his appre- 
 hension he assumed a false name, under which he 
 was tried, to conceal his situation from his friends, 
 and convicted, but on a representation of the circum- 
 stances he received a pardon, when on the point of 
 being transported for life (/) ; he had been the dupe 
 of the real thief, who, finding himself closely pursued, 
 
 {o) 2 Hale, p. C. p. 289. 
 
 {p) /vex V. Cz7/, O.B. Sessions Papers and Ann. Reg. 1827 (Chr.), 
 p. 179.
 
 KECENT POSSESSION OF THE FRUITS OF CRIME. 79 
 
 had thus contrived to rid himself of the possession 
 of the cattle. 
 
 7. The rule under discussion is occasionally 
 attended with uncertainty in its application, from the 
 difficulty attendant upon the positive identification 
 of articles of property alleged to have been stolen ; 
 and it clearly ought never to be applied, where there 
 is reasonable ground to conclude that the witnesses 
 may be mistaken, or where from any other cause 
 identity is not satisfactorily established. But the 
 rule is nevertheless fairly and properly applied in 
 circumstances where, though positive identification 
 is impossible, the possession of the property cannot 
 without violence to every reasonable hypothesis but 
 be considered of a guilty character; as in the case 
 of persons employed in carrying tea, sugar, tobacco, 
 and other like articles from ships and wharves. Cases 
 have frequently occurred of convictions of larceny, 
 in such circumstances, upon evidence that the parties 
 were detected with property of the same kind upon 
 them recently after coming from such places, although 
 the identity of the property as belonging to any par- 
 ticular person could not otherwise be proved [q). On 
 this principle two men were convicted of larceny 
 upon evidence that the prosecutor's soap-manufac- 
 tory, near Glasgow, had been broken into in the 
 night and robbed of about 120 lbs. of yellow soap, 
 and that the prisoners were met on the same night, 
 about eleven o'clock, by the watchman, near the 
 centre of the city, from whom they attempted to 
 escape, one bearing on his back forty pounds of soap 
 
 ig) 2 East, P. C. 1035.
 
 80 INCULPATORY MORAL INDICATIONS. 
 
 of the same size, shape, and make as that stolen from 
 the prosecutor's premises, and the other with his 
 clothes soiled over with the same substance, though 
 the property could not be more distinctly iden- 
 tified {;■). It is seldom, however, that juries are 
 required to determine upon the effect of evidence 
 of the mere recent possession of stolen property ; 
 from the very nature of the case, the fact is generally 
 accompanied by other corroborative or explanatory 
 circumstances of presumption. If the party have 
 secreted the property, — if he deny that it is in his 
 possession, and such denial be discovered to be false, 
 — if he cannot show how he became possessed of it, 
 — if he give false, incredible, or inconsistent accounts 
 of the manner in which he acquired it, as that he 
 found it, or that it had been given or sold to him by 
 a stranger, or left at his house, — if he have disposed 
 of or attempted to dispose of it at an unreasonably 
 low price, — if he have absconded or endeavoured to 
 escape from justice, — If other stolen property, or 
 housebreaking tools, or other instruments of crime 
 be found in his possession, — if he were seen near the 
 spot at or about the time when the act was com- 
 mitted, — or if any article belonging to him be found 
 at or near the place where the theft was committed, 
 at or about the time of the commission of the offence, 
 — if the impressions of his shoes or other articles of 
 apparel correspond with marks left by the thieves, — if 
 he have attempted to obliterate from the articles in 
 question marks of identity, or to tamper with the 
 parties or the officers of justice, — these, and all like 
 
 (r) AV.r V. M'-KecJmie and Tolmie^ Alison's Principles of the 
 Criminal Law of Scotland, vol. i. p. 322.
 
 UNEXPLAINED APPEARANCES OF SUSPICION. 8l 
 
 circumstances, are justly considered as throwing 
 light upon and explaining the fact of possession, and 
 render it morally certain that such possession can 
 be referable only to a criminal origin, and cannot 
 otherwise be rationally accounted for [s). 
 
 Section 5. 
 
 unexplained appearances of suspicion, and at- 
 tempts to account for them by false repre 
 sentations. 
 
 As a general rule, to which the exceptions can be 
 but rare, it is a reasonable conclusion, that an 
 innocent party can explain suspicious or unusual 
 appearances, connected with his person, dress or 
 conduct ; and that the desire of self-preservation, 
 if not a regard for truth, will prompt him to do so. 
 The ingenuous and satisfactory explanation of cir- 
 cumstances of apparent suspicion always operates 
 powerfully in favour of the accused, and obtains for 
 him more ready credence when the explanation 
 may not be easily verified (/). On the other hand, 
 the force of suspicious circumstances is augmented, 
 whenever the party attempts no explanation of facts 
 which he may reasonably be presumed to be able 
 and interested to explain. An old man on his way 
 home from market, where he had stayed late, was 
 attacked, thrown down, and robbed by three men, 
 one of whom he wounded in the struggle with 
 
 (s) Upon the subject-matter of this section compare Roscoe's 
 Criminal Evidence (12th ed.) pp. 17 and 783, and Russell on Crimes 
 (6th ed.) vol. ii. pp. 287 e/ seq. and vol. iii. pp. 355 et seq 
 
 (/) See the case oi Reg. v. Pook, pp. 250-252, infra. 
 C.E. G
 
 82 INCULPATORY MORAL INDICATIONS. 
 
 a clasp-knife. Upon the apprehension of one of 
 the robbers at the house of his mother, he was 
 dressed in a new pair of trousers, and the constable 
 found in a room upstairs, between the bed and 
 the mattress, a pair of trousers with two long cuts in 
 one thiL;h, one of which had penetrated through the 
 lini^L,^ and was stained with blood at that spot ; and 
 the holes had been sewed with thread which was 
 not discoloured, showing that the blood must have 
 been applied to the cloth previous to the repair, and 
 a corresponding cut bound over with plaisters was 
 found on the prisoner's thigh. He refused to give 
 any explanation of the wound or of the cuts in the 
 garments, and was convicted and transported [it). 
 
 But circumstances of suspicion merely, without 
 more conclusive evidence, are not sufficient to justify 
 conviction, even though the party offer no explanation 
 of them. Two women were indicted for colouring 
 a counterfeit shilling and sixpence, and a man as 
 an accessory ; and the evidence against him was 
 that he visited the women once or twice a week, that 
 the rattling of copper money was heard while he was 
 with them, that once he was counting something just 
 after he came out, that on going to the room just 
 after their apprehension, he resisted being stopped, 
 and jumped over a wall to escape, and that there 
 were found upon him a bad three-shilling-piece and 
 five bad sixpences : upon a case reserved, the judges 
 thought the evidence too slight to convict him (,r). 
 
 {ii) Rex V. Daiuttry, York Sp. Ass. 1841. 
 
 {x) Rex V. Isaacs, Russell on Crimes (6th ed. by Smith & Keep), 
 vol. i. p. 2 1 6. Sed quccre.
 
 UNEXPLAINED APPEARANCES OF SUSPICION. 83 
 
 So natural and forcible is this rule of presumption, 
 that the guilty are instinctively compelled to en- 
 deavour to evade its application, by giving some 
 explanation or interpretation of adverse facts, con- 
 sistent, if true, with innocence ; but its force is 
 commonly aggravated by the improbability, or 
 absurdity even, of such explanations, or the incon- 
 sistency of them with admitted or incontrovertible 
 facts. All such false, incredible, or contradictory 
 statements, if disproved, or disbelieved, are not 
 simply neutralized, but become of a substantive 
 inculpatory effect. Even in such circumstances, 
 however, guilt cannot be safely inferred, unless 
 such a substratum of evidence, direct or circum- 
 stantial, has been laid as creates an independent 
 prima facie case against the prisoner i^y). On the 
 trial for the murder by poison of a female, whom 
 the prisoner alleged to have died from the effects 
 of a draught taken by her in anger during an 
 altercation between them, Mr. Baron Parke told 
 the jury that it was for them to say whether the 
 falsehoods the prisoner had told, did not show that 
 he was conscious that he had been guilty of some 
 act that required concealment ; that it was very 
 true he might not wish it to be known he had been 
 visiting a woman who, there was good reason to 
 believe, had formerly been his mistress ; but that, 
 if he was an innocent man, and had been present 
 at the death, one would have supposed he would 
 have disclosed it immediately and called in some 
 
 {y) Per Mr. Justice Littledale in Rex v. Clark, Warwick Summ. 
 Ass. 1 83 1. It would be more accurate to say "a substantial and 
 independent prinid facie case." 
 
 G 2
 
 84 INCULPATORY MORAL INDICATIONS. 
 
 assistance. They had here two iintrutlis, tliat he 
 meant to dine at the west end of the town and did 
 not ; and iiis denial that he had been out of London 
 that evening ; these he said, were very material 
 matters for their inquiry, bearing in mind that upon 
 the evidence there was a very ample case for grave 
 consideration, to show that the deceased died of 
 prussic acid, and that the prisoner was present in 
 the house at the moment of that death. His Lord- 
 ship added, that if the prisoner's representation had 
 been true, that the deceased had poisoned herself, 
 one would have supposed that he would have taken 
 the first opportunity, having been present at the 
 time this occurred, of exonerating himself from it, 
 by making this declaration to the first person he 
 met ; one would expect, if he had been a man 
 of the least cordial feeling, he would have waited 
 to see whether it was true or not that she had taken 
 this poison, and called for assistance, instead of 
 which, he is proved to have gone in a short time 
 to London, and when he got to London he is 
 proved to have denied altogether that he had been 
 at Slough. You must judge, said the learned Baron, 
 of the truth of the case against a person by all his 
 conduct taken together {z). 
 
 An important consideration in this connection is 
 the time at which and the occasion upon which the 
 explanation of suspicious circumstances or other 
 matter of defence within the knowledo-e of an 
 accused person is propounded. Has it been put 
 
 (z) Reg. V. Taivell, Aylesbury Sp. Ass. 1845. 2 C. & K. 309, note. 
 I Woodall's Celebrated Trials, 162, and see pp. 313-317, infra.
 
 UNEXPLAINED APPEARANCES OF SUSPICION. 85 
 
 forward at the natural time ? In some instances 
 the explanation or matter of defence would spring 
 unbidden to the lips of an innocent man the moment 
 he was accused of the crime in question. In others 
 it would be natural enough that he would require 
 time to collect his thoughts and exercise his memory. 
 In all cases, if it involves allegations of fact, the 
 truth of which can be inquired into, the value to be 
 attached to it will depend, and ought to depend, 
 largely upon whether the opportunity for inquiry is 
 afforded by the person inculpated. If the oppor- 
 tunity be given, and the facts alleged are not contra- 
 dicted by evidence, the natural and proper inference 
 is that they are true, and the accused person ought 
 to have the full benefit of such an inference. If 
 they are suppressed until inquiry is impossible, 
 while it is too much to say that they ought not to be 
 listened to and considered, the credit to be given to 
 them and to any evidence by which they may be 
 supported ought to be very largely discounted. 
 
 There are three occasions upon which every man 
 who is tried upon indictment has had the opportunity 
 of giving any explanation of his conduct or of men- 
 tioning any other defence he may have : first, when 
 he is originally charged, whether by an employer or 
 ether person having legitimate occasion to speak to 
 him upon the subject of the charge, or by a police 
 officer making inquiries or effecting his arrest ; 
 secondly, when formally charged at the police station ; 
 and thirdly, after the evidence has been given 
 against him before the magistrates and he is 
 offered the choice whether he wishes to say anything
 
 86 INCULPATORY MORAL INDICATIONS. 
 
 in answer to tlie charge or not. The last is 
 of course the most important of these occasions. 
 It is a common trick of criminal advocacy to say in 
 answer, " I reserve my defence ; I call no witnesses 
 here, and I offer no evidence," and the criminal 
 classes themselves have caught it from their advisers, 
 and largely make use of the phrase. 
 
 Such a beginning is to say, the very least, a bad 
 introduction to a true story. Occasionally, the 
 explanation or defence is nevertheless true, and 
 the suspicion with which, under such circumstances, 
 it ought to be regarded is due to very bad advice ; 
 but this is a rare exception, and usually such an 
 answer [jiven before committal means that there is 
 no defence, or that a story is in contemplation which 
 will not bear investigation. 
 
 It is very necessary that such considerations 
 should be borne in mind. There is a natural and 
 a wholesome tendency in most men to give to a 
 prisoner who is often a man with small or no means, 
 and who speaks at a disadvantage necessarily inci- 
 dent to his position, every possible consideration, 
 and plausible stories told from the dock by persons, 
 many of whom are consummate actors [a), are apt to 
 meet with more rather than with less of the attention 
 they deserve. Want of means to bring witnesses is 
 
 (a) On one occasion the Editor offered a prisoner an adjournment 
 of the trial in order that the witnesses, who he said could prove his 
 innocence, might be produced. The offer was accepted with an 
 appearance of effusive gratitude, which made it appear almost an 
 unnecessary ceremony. The witnesses came the next day, when it 
 appeared that the story was a fabrication from beginning to end.
 
 UNEXPLAINED APPEARANCES OF SUSPICION. 87 
 
 constantly allei^ed. This may be a legitimate excuse 
 for not bringing the witnesses. It is none for the 
 failure to mention at the right time and upon the 
 natural occasion, the facts which it is alleged that 
 these witnesses could prove, in which case the omis- 
 sion on the part of the prosecution to investigate 
 and bring evidence of the real facts will serve the 
 prisoner quite as effectually as the witnesses them- 
 selves could do. Of course, ignorance or want of 
 education on the part of a prisoner must be taken 
 into account, and all such considerations as have 
 been pointed out should be applied with caution and 
 judgment. But they are important, and are of very 
 general application. The most ignorant man in the 
 world, accused of committing a crime in London the 
 day before yesterday, if he had really been in Bir- 
 mingham at the time in question, could scarcely fail 
 to say so ; and the same observation applies to many 
 less simple illustrations of the matter under discussion. 
 
 There are few limits to the ingenuity and plausi- 
 bility of many of the criminal classes — a fact of which 
 a judge has had much more experience than jurors 
 can possibly have— and if a plausible falsehood be 
 impressively told from the dock or by the prisoner 
 in the witness box, and told upon his trial for the 
 nrst time, there may be no answer to it possible 
 except that it is then told for the first time. Occa- 
 sionally it is possible to test a story told under such 
 circumstances, especially since the Act which has 
 permitted jurors, on trials for felonies other than 
 murder, to separate before giving their verdict, 
 and has thus made an adjournment possible if there
 
 88 INCULPATORY MORAL INDICATIONS. 
 
 is time for it before the conclusion of the particular 
 assizes or sessions. The Editor has made use from 
 time to time of such a power under such circum- 
 stances, and the result has almost, if not quite, 
 universally been to discredit a story reserved for 
 production on the day of trial. 
 
 The following- is a striking instance of the kind. 
 A man named Williams was tried for breaking into 
 a lady's house at Salisbury on the 9th May, 1901. 
 Six or seven pounds in sovereigns, a watch, a ring, a set 
 of false teeth, and other articles were stolen from the 
 house between i and 4 p.m., during the absence of 
 the inmates at a bazaar, which was opened by Lord 
 Roberts. Evidence was given by the postmaster at 
 Salisbury that a person, whom he identified as the 
 prisoner, had, about 1.50, brought to the post-office 
 for despatch a brown paper parcel. After his depar- 
 ture the postmaster had compulsorily registered it, 
 because it appeared to him. to contain valuables. 
 Five minutes later the same man returned, bought 
 three postal orders for ^i each, and paid for them 
 with three sovereigns and the odd pence. The 
 parcel was directed to Mrs. Williams, 8, Harvey 
 Street, Hyde Road, Hoxton. Upon the robbery 
 being discovered, the police at Salisbury telegraphed 
 to the police at Hoxton, and the next morning, when 
 the postman called at 8, Harvey Street, a detective 
 followed him into the house, and took possession of 
 a registered brown paper parcel and a letter which 
 were about to be delivered to the prisoner, who was 
 standing on the staircase. His wife was in the 
 house. He was arrested and taken to Salisbury,
 
 UNEXPLAINED APPEARANCES OF SUSPICION. 89 
 
 where the parcel was opened, and found to contain 
 the stolen watch, ring, and false teeth. The letter 
 contained the three postal orders procured at Salis- 
 bury, and three others for a like amount issued on 
 the same 9th May, at Winterbourne Gunner, four 
 miles from Salisbury. 
 
 The prisoner had made no answer to the charge 
 at the police station, and before the magistrates had 
 simply denied his guilt. At the trial, however, he 
 went into the witness box, and swore that he was at 
 Battersea all day on the 9th May. He was a person 
 against whom nothing had been recorded, and was 
 of respectable appearance and plausible manners. 
 It was strongly urged on his behalf that it was a 
 case of mistaken identity, that no evidence had been 
 eiven of his having been at Winterbourne Gunner, 
 or obtained the postal order issued from that office, 
 and that the real thief was the unknown man who 
 had obtained the Winterbourne Gunner orders. 
 The judge observed that had the prisoner denied at 
 an earlier stage that he had been at Salisbury on 
 the 9th May, the police would no doubt have given 
 evidence of what had happened at Winterbourne 
 Gunner, and that inquiries there would have probably 
 resulted in the demonstration either of the prisoner's 
 guilt or of his innocence. The trial was adjourned 
 for a couple of hours, at the end of which time 
 the postmistress from Winterbourne Gunner was 
 produced. She swore that the prisoner had come to 
 her post-office about four o'clock, and had bought 
 the three postal orders contained in the letter. The 
 nearest railway station to Winterbourne Gunner is 
 Porton, which is about a mile offi The keeper of a
 
 go INCULPATORY MORAL INDICATIONS. 
 
 hotel at Porton proxcd that the prisoner and another 
 man had called at liis hotel, about a quarter past 
 four, had gone into the commercial room and written 
 letters, and gone out again. They had then returned 
 and gone to the railway station, which is close by, 
 a little after 5. A railway porter identified the 
 prisoner as one of two men who had left together by 
 the 5.32 train. 
 
 The prisoner had asserted that he was in Hyde 
 Road on the evening of the 9th May, and had seen 
 the detective who arrested him the next morning 
 in the streets, describing his dress. The detective 
 admitted that he was there soon after 9, and it was 
 suggested that there was not time for the prisoner 
 to have reached Hoxton by that hour if he had been 
 at Porton at 5.30, particularly as the trains from 
 Salisbury on that night were very full. Of course 
 no railway official could be called to show at what 
 time the train leaving Porton at 5.32 arrived at 
 Waterloo. It happened, however, that the High 
 Sheriff, who was in court, had travelled to London 
 by the very train in question, and he deposed that 
 the train arrived at Waterloo about 8, which left an 
 ample margin for arrival at Hoxton before 9. Thus 
 the prisoner's story and the suggestions made on 
 his behalf were all completely disproved, and the 
 prisoner was convicted {^d). 
 
 Allowance must nevertheless be made for the 
 weakness of human nature, and for the difficulties 
 which may attend the proof of circumstances of 
 
 {b) Rex V. TJiomas Williams, Salisbury Summer Assize, 190 1, 
 coram Wills, J .
 
 UNEXPLAINED APPEARANCES OF SUSPICION. QI 
 
 exculpation (^) ; and care must be taken that cir- 
 cumstances are not erroneously assumed to be 
 suspicious without sufficient reason {^d). 
 
 Section 6. 
 indirect confessional evidence. 
 
 Although the subject of direct confession does 
 not fall within the province of this essay, it is 
 necessary to advert to some of the principal rules 
 which relate to that important head of moral 
 evidence ; because they are of great moment in 
 their application to such particulars of circumstantial 
 evidence as are only indirectly in the nature of 
 confessional evidence. 
 
 A voluntary confession of guilt, if it be full, con- 
 sistent, and probable, is justly regarded as evidence 
 of the highest and most satisfactory nature (<?). Self- 
 love, the mainspring of human conduct, will usually 
 prevent a rational being from making admissions 
 prejudicial to his interest and safety, unless when 
 caused by the promptings of truth and conscience. 
 
 By the law of England, a voluntary and unsus- 
 pected confession is clearly sufficient to warrant 
 conviction, wherever there is independent proof of 
 
 (c) See Rexv. Gill, Ann. Reg. 1S27 (Chr.), p. 179. Sessions Papers. 
 And see 2 Hale, P. C. p. 2S9. 
 
 {ii) See Rex v. Looker, p. 242, infra, and Rex v. Thorntoji, p. 244, 
 i7tj'ra. 
 
 (e) 3 Mascardus De Probationibus, Concl. XV., xvi. ; Rex v. War- 
 rickshall, I Leach, C. C. 263 ; Greenleafs L. of Ev. §-219.
 
 92 INCULPATORY MORAL INDICATIONS. 
 
 tlie coi'pus delicti. According to some authorities, 
 confession alone is a sufficient ground for conviction, 
 even in the absence of any such independent 
 evidence ; but the contrary opinion is most in 
 accordance with the general principles of reason and 
 justice, the opinions of the best writers on criminal 
 jurisprudence, and the practice of other enlightened 
 nations, and may now be accepted as settled 
 law (/"). The cases adduced in support of the 
 doctrine that confession without other proof of the 
 corpus delicti is sufficient, are not very decisive, since 
 in all of them there appears to have been some 
 evidence, though slight, of confirmatory circum- 
 stances, independently of the confession (^). 
 
 Judicial history presents warning of the danger 
 of placing implicit dependence upon abundant con- 
 fession even where exempt from all suspicion of 
 coercion, physical or moral, or other sinister influ- 
 ence. How greatly then must such danger be 
 aggravated, where confession constitutes the only 
 evidence of the fact of a corpus delicti ; and how 
 incalculably greater in such cases is the necessity for 
 the most rigorous scrutiny of all collateral circum- 
 stances, which may induce a false confession ! The 
 agonies of torture, the dread of their infliction, the 
 hope of escaping the rigours of slavery or the hard- 
 ships of military service, a weariness of existence, 
 
 (/) Best on Presumptions p. 330, and the cases cited ; i Green- 
 leafs L. of Ev. § 217 ; Alison's Principles of the Criminal Law of 
 Scotland, p. 325 ; Code Penal d'Autriche, partie i, § 2, ch. x. 
 
 {g) Rex V. Fisher^ i Leach, C. C. p. 31 1 ; Rex v. Eldridge, R. & R. 
 440 ; Rex V. Falkner, ib. 481 ; Rex v. White, ib. 508; Rex v. Tippett, 
 ib. 509 J I Greenleaf's L. of Ev. § 217.
 
 INDIRECT CONFESSIONAL EVIDENCE. 93 
 
 self-delusion, the desire to shield a guilty relative or 
 friend from the penalties of justice {/i), the impulses 
 of despair from the pressure of strong and apparently 
 incontrovertible presumptions of guilt, the chance of 
 escaping unmerited punishment and disgrace, the 
 hope of pardon — these and numerous other induce- 
 ments have not unfrequently operated to produce 
 unfounded confessions of guilt 
 
 Innumerable are the instances on record of con- 
 fession extracted "by the deceitful and dangerous 
 experiment of the criminal qiicestion, as it is em- 
 phatically styled " (z), of offences which were never 
 committed, or not committed by the persons making 
 confession {k). Nor have such instances been wanting 
 on the continent of Europe even in the present 
 century. 
 
 When Felton, upon his examination at the Council 
 Board, declared, as he had always done, that no man 
 livinor had instigated him to the murder of the Duke 
 of Buckingham, the Bishop of London said to him, 
 " If you will not confess you must go to the rack." 
 The man replied, " If it must be so, I know not whom 
 I may accuse in the extremity of the torture, — Bishop 
 Laud perhaps, or any lord at this Board " (/). " Sound 
 sense," observed the excellent Sir Michael Foster, 
 " in the mouth of an enthusiast and a ruffian " {i7t). 
 
 iji) Chitty's Criminal Law, vol. i. p. 85. 
 
 («") Gibbon's Decline and Fall, ch. xvii. 
 
 {k) Jardine on the Use of Torture in the C. L. of England^ pp. 5-7 ; 
 and see Fortescue De Laudibus Legum Anglias, ch. 22. 
 
 (/) Rushworth's Collections, vol. i. p. 638, referred to in Jardine, p. 1 1. 
 
 (;«) Foster's Discourses on the Crown Law, Disc. \. ch. 3, s. 8 (3rd 
 ed. p. 244).
 
 94 INCULPATORY MORAL INDICATIONS. 
 
 Not less repugnant to policy, justice, and humanity 
 is the moral torture to which in some (perhaps in 
 most) of the nations of Europe, persons suspected 
 of crime are subjected, by means of searching, 
 rigorous, and insidious examinations, conducted by 
 skilful adepts in judicial tactics, and accompanied 
 sometimes even by dramatic circumstances of terror 
 and intimidation (;/). 
 
 Lord Clarendon gives a circumstantial account 
 of the confession of a Frenchman named Hubert, 
 after the fire of London, that he had set the first 
 house on fire, and had been hired in Paris a year 
 before to do it. " Though," says he, " the Lord 
 Chief Justice told the King that ' all his discourse 
 was so disjointed he did not believe him guilty,' yet 
 upon his own confession the jury found him guilty, 
 and he was executed accordingly " ; the historian 
 adds, " though no man could imagine any reason 
 why a man should so desperately throw away his 
 life, which he might have saved though he had been 
 guilty, since he was accused only upon his own 
 confession, yet neither the judges nor any present 
 at the trial did believe him guilty, but that he was 
 a poor distracted wretch, weary of life, and chose 
 to part with it this way"(^). 
 
 («) See the case of Riembaur, a Bavarian priest, charged with 
 murder, in Narratives of Remarkable Criminal Trials, by Feuerbach, 
 vide supra, p- 3 1 • 
 
 ip) Clarendon's Life and Continuation, vol. lii. p. 94 (Oxford ed. 
 1827). Sir Samuel Romilly (Memoirs, vol. ii. p. 182) relates a case in 
 his own experience, where an innocent man was erroneously executed 
 in pursuance of the sentence of a court-martial, on a charge of mutiny, 
 solely on account of his defence being a confession and an appeal for 
 mercy.
 
 INDIRECT CONFESSIONAL EVIDENCE. 95 
 
 A very remarkable case of this nature was that 
 of the two Boorns, convicted in the Supreme Court 
 of Vermont in September term, 18 19, of tlie murder 
 of Russell Colvin, May loth, 1812. It appeared that 
 Colvin, who was the brother-in-law of the prisoners, 
 was a person of a weak and not perfectly sound 
 mind ; that he was considered burdensome to the 
 family of the prisoners, who were obliged to support 
 him ; that on the day of his disappearance, being 
 in a distant field, where the prisoners were at work, 
 a quarrel broke out between him and them, and that 
 one of them struck him a violent blow on the back 
 of the head, with a club, which felled him to the 
 ground. Some suspicions arose, at that time, that he 
 was murdered; which were increased by the finding 
 of his hat, in the same field, a few months afterwards. 
 These suspicions in process of time subsided ; but 
 in 18 19, one of the neighbours having repeatedly 
 dreamed of the murder, with great minuteness of 
 circumstance, both in regard to his death and the 
 concealment of his remains, the prisoners were 
 vehemently accused, and generally believed guilty 
 of the murder. Upon strict search, the pocket-knife 
 of Colvin, and 3. button of his clothes, were found 
 in an old open cellar in the same field ; and in a 
 hollow stump not many rods from it, were discovered 
 two nails and a number of bones believed to be 
 those of a man. Upon this evidence, together with 
 the deliberate confession of murder and concealment 
 of the body in those places, they were convicted, and 
 sentenced to die. On the same day they applied 
 to the legislature for a commutation of the sentence 
 of death, to that of perpetual imprisonment ; which
 
 g6 INCULPATORY MORAL INDICATIONS. 
 
 as to one only of them was granted. The con- 
 fession being now withdrawn and contradicted, and 
 a reward offered for the discovery of the missing 
 man, he was found in New Jersey, and returned 
 home in time to prevent the execution. He had fled 
 for fear that they would kill him. The bones were 
 those of an animal. The prisoners had been advised 
 by some misjudging friends, that, as they would 
 certainly be convicted upon the circumstances 
 proved, their only chance for life was by a com- 
 mutation of punishment, and that this depended 
 on their making a penitential confession, and there- 
 upon obtaining a recommendation to mercy (/» ). 
 
 A more recent case which created some stir at 
 the time, and appears to have ended in a miscarriage 
 of justice, illustrates the extraordinary ideas which 
 induce persons to make false confessions. In April, 
 1879, two men, named Brannagan and Murphy, 
 were convicted at Newcastle Assizes of burglary, 
 with shooting, at Edlingham Vicarage. In the 
 autumn of 1888, nearly ten years later, two men, 
 named Edgell and Richardson, confessed that they 
 committed the crime, and they were convicted and 
 sentenced to five years penal servitude, while Murphy 
 and Brannagan, who had received life sentences, 
 were pardoned and compensated. In February, 
 1889, several police officers were charged with 
 perjury at the first trial in 1879. Edgell and 
 Richardson were the principal witnesses against 
 
 {p) I Greenleaf's L. of Ev. § 214, note; and see the case of the 
 Perry s^ infra^ p. 282, and an American case in Wharton's Criminal L. 
 of the U. S. p. 315, and a case mentioned in i Leach, C. C. p. 264, note.
 
 INDIRECT CONFESSIONAL EVIDENCE. gy 
 
 them, and upon cross-examination admitted that 
 they had been told by a soHcitor, before they con- 
 fessed, that they could not be punished, as two 
 other men had already been convicted of the same 
 offence (^). The police were acquitted, Mr. Justice 
 Denman saying, in his summing up, that he had 
 seldom seen a case in which the conclusion seemed 
 more certain than in the trial of 1879, and suggested 
 that the case against Murphy and Brannagan was, 
 at the time he was speaking, even stronger than in 
 1879, when they were convicted. There was a 
 general opinion at the time that the confession of 
 Edgell and Richardson was part of a scheme to get 
 the other two men released. 
 
 The State Trials contain numerous confessions of 
 witchcraft, and abound with absurd and incredible 
 details of communications with evil spirits, which 
 
 {q) A curious vulgar error ; a distortion of the fact that the same 
 person cannot be tried twice for the same offence. A remarkable 
 instance of it occurred after the trial of four men at the Derby Autumn 
 Assizes, 1889, before Wills, J., for a violent assault upon a constable 
 during a poaching affray {Reg. v. Shaw and others, 13 Dec. 1889). 
 They were convicted. Soon after their conviction, two or three 
 other men, believing that they could not be tried for the offence 
 of which Shaw and his companions had been convicted, began io 
 boast that it vv'as they who had beaten the constable. A petition was 
 then presented to the Home Secretary on behalf of the convicted men, 
 and a prosecution of the second batch was instituted. This case was 
 tried before Hawkins, J. The manner in which the evidence of the 
 confessions had been obtained by the solicitor who had defended the 
 first four men was open to serious observation, and the second set 
 were acquitted. Enough, however, had been ascertained in the course 
 of the most careful and elaborate inquiries instituted by the Home 
 Office to make it doubtful, at least, whether the evidence of the injured 
 constable as to the identity of the first four men could be relied upon ! 
 and they were released. 
 
 C.E. H
 
 gS INCULPATORY MORAL INDICATIONS. 
 
 only show that the parties were either impostors, or 
 the invokintary victims of invincible self-delusion. 
 One kind of false confession, that namely of being a 
 deserter, is so common, as to have been made the 
 subject of penal repression by rendering the offender 
 liable to be treated as a rogue and vagabond, and to 
 be imprisoned for any period not exceeding three 
 months (r). 
 
 A distinguished foreign lawyer well observes, that 
 " whilst such anomalous cases ought to render 
 courts and juries at all times extremely watchful of 
 every fact attendant on confessions of guilt, the 
 cases should never be invoked or so urged by the 
 accused's counsel as to invalidate indiscriminately all 
 confessions put to the jury, thus repudiating those 
 salutary distinctions which the Court, in the judicious 
 exercise of its duty, shall be enabled to make. 
 Such a use of these anomalies, which should be 
 regarded as mere exceptions, and which should speak 
 only in the voice of warning, is no less unprofessional 
 than impolitic, and should be regarded as offensive 
 to the intelligence both of the Court and jury "(i'). 
 
 It is essential to justice, that a confessional state- 
 ment, if it be consistent, probable, and uncontradicted, 
 should be taken together, and not distorted, or but 
 partially adopted. " It is a rule of law," said Lord 
 Ellenborough, " that when evidence is given of what 
 
 {r) 44 & 45 Vict. ch. 58, sections 27 (3) and 152 (The Army Act, 
 1881), following 20 Vict. ch. 13, s. 49, which was repealed by 38 &: 39 
 Vict. ch. 66. 
 
 (s) I Hoffman's Course of Legal .Study, 367.
 
 INDIRECT CONFESSIONAL EVIDENCE. QQ 
 
 a party has said or sworn, all of it is evidence (sub- 
 ject to the consideration of the jury, however, as to 
 its truth), coming, as it does, in one entire form 
 before them ; but you may still judge to what parts 
 of the whole you can give credit ; and also whether 
 that part which appears to confirm and fix the 
 charge does not outweigh that which contains 
 the exculpation " (/). On the trial of a man for 
 a murder committed twenty-four years before, the 
 principal inculpatory evidence consisted of his 
 confession, which stated in substance that he was 
 present at the murder, but went to the spot without 
 any previous knowledge that a murder was intended, 
 and took no part in it. It was urged that the 
 prisoner's concurrence must be presumed from his 
 presence at the murder, but Mr. Justice Littledale 
 held that the statement must be taken as a whole ; 
 and that so qualified, it did not in fairness amount 
 to an admission of the guilt of murder (//) ; and 
 where the prisoner's declaration, in which she 
 asserted her innocence, was given in evidence, and 
 there was evidence of other statements confessine 
 guilt, the judge left the whole of the conflicting 
 statements to the jury for their consideration. But 
 where there is, in the whole case, no evidence but 
 what is compatible with the assertion of innocence, 
 adduced in evidence for the prosecution, the judge 
 will direct an acquittal (r). In the case of Strahan 
 
 (/) The Trial of Lord Cochrane {Rex, v. De Bercngcr and others^ 
 3 M. & S. 67), Gurney's Shorthand Report, p. 479. A recent account 
 of this famous trial will be found in Lord Cochrane's Trial before Lord 
 EUenborough, by J. B. Atlay (1897). 
 
 {it) Rex V. Clewes, 4 C. & P. 221, and Shorthand Report. 
 
 {x) Per Garrow, B., cited in Rex v. Jones, 2 C. & P. 629. 
 
 H 2
 
 100 INCULPATORY MORAL INDICATIONS. 
 
 and Paul, on a charge of selling and converting to 
 their own use bonds, with which they were entrusted 
 for safe custody as bankers, it was unsuccessfully 
 contended, that the admission made by the prisoner 
 Strahan must be accepted in its entirety or not at 
 2 ^ all, and that it would then fairly and reasonably 
 
 '^ 3 lead to the conclusion that he had known nothing 
 
 Q i. of the fraudulent transactions in which the other 
 
 > 
 
 O 
 
 'Ji 
 
 §i ^ 
 
 ^ =5 
 
 z 
 
 prisoners were the leading actors, in March, 1854; 
 
 but Mr. Baron Alderson told the jury that they 
 5 were not bound to believe either the whole or any 
 
 < ^ part of the statement made by the prisoner Strahan, 
 
 pC and that they must take it with this consideration as 
 
 one of the circumstances of the case and no more {y). 
 
 Of the credit and effect due to a confessional 
 statement the jury are the sole judges : they must 
 consider the whole confession, together with all the 
 other evidence in the case, and if it is inconsistent, 
 improbable, or incredible, or is contradicted or dis- 
 credited by other evidence, or is the emanation of 
 a weak or excited state of mind, they may exercise 
 their discretion in rejecting it, either wholly or in part, 
 whether the rejected part make for or against the 
 prisoner [z). On the trial of a man for setting fire to a 
 stack of hay, it appeared that between two and three 
 o'clock in the morning, a police constable attracted 
 by the cry of fire went to the spot, close to which he 
 met the prisoner, who told him that a haystack was 
 
 (j) Reg. V. Strahan atid others, C. C. C. Oct. 1855. Sessions 
 Papers, vol. 42. 
 
 {2) Rex V. Higgins, 3 C. & P. 603 ; Rex v. Steptoe, 4 C. & P. 397 ; 
 I Greenleaf's L. of Ev., § 218.
 
 INDIRECT CONFESSIONAL EVIDENCE. IQI 
 
 on fire, and that he was going to London ; the 
 policeman asked him to give information of the fire 
 to any other pohceman he might meet, and to 
 request him to come and assist. Shortly afterwards, 
 on his way towards London, the prisoner met a 
 Serjeant of police whom he informed of the fire, 
 stating that he was the man who set the stack on 
 fire, upon which he was taken into custody. The 
 Serjeant of police, on cross-examination by the 
 prisoner, stated that the magistrates entertained an 
 opinion that he was insane, and directed inquiries to 
 be made, from which it appeared that he had before 
 been charged with some offence and acquitted on 
 the ground of insanity. When apprehended, the 
 prisoner appeared under great excitement ; and upon 
 his trial he alleged that he had been confined two 
 years in a lunatic asylum, and had been liberated 
 only about a year ago ; that his mind had been 
 wandering for some time ; and that passing by the 
 place at the time of the fire, he was induced, in a 
 moment of delirium, to make this groundless charge 
 against himself. He begged the Court to explain 
 to the jury the different result that would follow 
 from his being acquitted on the ground of insanity 
 and an unconditional acquittal : and said that rather 
 than the former verdict should be returned, which 
 would probably have the effect of immuring him in 
 a lunatic asylum for the rest of his life, he would 
 retract his plea of not guilty, and plead guilty to the 
 charge. Mr. Justice John Williams in summing up 
 remarked, that there did not appear to be the least 
 evidence against the prisoner except his own state- 
 ment ; and that it was for the jury to say under all the
 
 102 INCULPATORY MORAL INDICATIONS. 
 
 circumstances whether they beheved that statement 
 was founded in fact, or whether it was, as the prisoner 
 alleged, merely the effect of an excited imagination 
 and weak mind. The prisoner was acquitted (a). 
 
 It is obvious that every caution observed in the 
 reception of evidence of a direct confession, ought 
 to be more especially applied in the admission and 
 estimation of the analogous evidence of statements 
 which are only indirectly in the nature of confessional 
 evidence ; since such statements, from the nature of 
 the case, must be ambiguous, or relate but obscurely 
 to the corpus delicti. *' Hasty confessions," says 
 Sir Michael Foster, " made to persons having no 
 authority to examine, are the weakest and most 
 suspicious of all evidence. Proof may be too easily 
 procured, words are often misreported, — whether 
 through ignorance, inattention, or malice, it mattereth 
 not to the defendant, he is equally affected in either 
 case ; and they are extremely liable to misconstruc- 
 tion, and withal this evidence is not in the ordinary 
 course of things to be disproved by that sort of 
 negative evidence by which the proof of plain facts 
 may be and often is confronted " {b). " How easy is 
 it," it has been admirably said, "for the hearer to 
 take one word for another, or to take a word in a 
 sense not intended by the speaker, and for want of 
 an exact representation of the tone of voice, emphasis, 
 
 {a) Reg. V. Wilson, Maidstone Wint. Ass. 1844. The same view 
 was adopted by Wilde, L. C. J., in a case of arson at Maidstone Spring 
 Assizes, 1847, where the prisoner to conceal his disgrace refused to 
 give his name. 
 
 [b) Foster's Discourses on the Crown Law. Disc. I. ch. 3, p, 243 ; 
 and see i Greenleaf's L. of Ev. § 214.
 
 INDIRECT CONFESSIONAL EVIDENCE. I03 
 
 countenance, eye, manner and action of the one who 
 made the confession, how ahiiost impossible it is to 
 make third persons understand the exact state of 
 his mind and meaning ! For these reasons such 
 evidence is received with great distrust and under 
 apprehension for the wrong it may do"(^). 
 
 Upon the trial of a man for the murder of a 
 woman, who had been brutally assaulted by three 
 men, and died from the injuries she received, it 
 appeared that one of the offenders, at the time of 
 the commission of the outrage, called another of 
 them by the prisoner's name, from which circum- 
 stance suspicion attached to him. A person deposed 
 that he met the prisoner at a public house, and 
 asked him if he knew the woman who had been so 
 cruelly treated, and that he answered, " Yes, what 
 of that ? " The witness said, that he then asked 
 him if he was not one of the parties concerned in 
 that affair ; to which he answered, according to one 
 account, " Yes, I was ; and what then ? " or, as 
 another account states, " If I was, what then V It 
 appeared that the prisoner was intoxicated, and that 
 the questions were put with a view of ensnaring 
 him ; but, influenced by this imprudent language, the 
 jury convicted him, and he was executed. The real 
 offenders were discovered about two years afterwards, 
 and two of them were executed for this very offence, 
 and admitted their guilt ; the third having been 
 admitted to give evidence for the Crown [d). 
 
 {c) In Resp. v. Fields, Peck's Rep. 140, quoted in i Taylor's L. of 
 Ev., 9thed., p. 555. 
 
 {d) Rex V. Coleman, Kingston Spring Ass., 1749. 4 Celebrated 
 Trials, 344.
 
 104 IN'CULPATORY MORAL INDICATIONS. 
 
 But in the most debased persons tliere is an 
 involunlary tendency to triitli and consistency, 
 except when the mind is on its o;uard, and studiously 
 bent upon conceahnent ; and this law of our nature 
 sometimes gives rise to minute and unpremeditated 
 acts of ijreat weiirht. In the memorable case of 
 Eugene Aram, who was tried in 1759 for the 
 murder of Daniel Clark, an apparently slight circum- 
 stance in the conduct of his accomplice, led to his 
 conviction and execution. About thirteen years 
 after the time of Clark's being missing, a labourer, 
 employed in digging for stone to supply a limekiln 
 near Knaresborough, discovered a human skeleton 
 near the edge of the cliff. It soon became suspected 
 that the body w^as that of Clark, and the coroner 
 held an inquest. Aram and Houseman were the 
 persons who had last been seen with Clark, on the 
 night before he was missing. The latter was sum- 
 moned to attend the inquest, and discovered signs 
 of uneasiness : at the request of the coroner he took 
 up one of the bones, and in his confusion dropped 
 this unguarded expression, " This is no more Daniel 
 Clark's bone than it is mine ; " from which it was 
 concluded, that if he was so certain that the bones 
 before him were not those of Clark, he could give 
 some account of him. He was pressed with this 
 observation, and, after various evasive accounts, he 
 stated that he had seen Aram kill Clark, and that 
 the body was buried in St. Robert's Cave, with the 
 head to the rioht in the turn at the entrance of the 
 cave, and upon search, pursuant to his statement, 
 the skeleton of Clark was found in St. Robert's 
 Cave, buried precisely as he had described it.
 
 INDIRECT CONFESSIONAL EVIDENCE. lOj 
 
 Aram was consequently apprehended and tried at 
 York in 1759, Houseman being the sole witness 
 against him. He was convicted and executed, after 
 having made a confession of the crime (e). 
 
 A remarkable fact of the same kind occurred in 
 the case of one of three men convicted, in February, 
 1807, of a murder on Hounslow heath. In conse- 
 quence of disclosures made by an accomplice, a 
 police-officer apprehended the prisoner four years 
 after the murder on board the ' Shannon ' frigate, 
 in which he was serving as a marine. The ofhcer 
 asked him in the presence of his captain where he 
 had been about three years before ; to which he 
 answered that he was employed in London as a 
 day-labourer. He then asked him where he had 
 been employed that time four years : the man 
 immediately turned pale, and would have fainted 
 away had not water been administered to him. 
 These marks of emotion derived their weight from 
 the latency of the allusion — no express reference 
 having been made to the offence with which the 
 prisoner was charged — and from the probability that 
 there must have been some secret reason for his emo- 
 tion connected with the event so obscurely referred to, 
 particularly as he had evinced no such feeling upon 
 the first question, which referred to a later period (_/). 
 
 The conduct of a person accused of a crime, the 
 
 (e) Life and Trial of Eugene Aram, 1759. Best edition printed at 
 Richmond, 1832. See Ann. Reg. 1759, p. 360: 4 Celebrated Trials, 
 243, and Diet, of Nat. Biog., article Aram. 
 
 (/) Rex V. Hajro^erty and others, 6 Celebrated Trials, 19 ; and O. B. 
 Sessions Papers, 1807.
 
 I06 INCULPATORY MORAL INDICATIONS. 
 
 things he says and does, or the letters he writes, 
 are often important pieces of indirect confessional 
 evidence, which may prove his guilt conclusively. 
 On the morning of Oct. 21st, 1891, at about 3 a.m., 
 a young woman named Clover, who lived in Lambeth, 
 Avas taken violently ill, and died at about 9 a.m. A 
 local practitioner gave a certificate of death from 
 syncope caused by delirium tremens. No suspicion 
 of foul play was aroused, and the girl was buried 
 without any further inquiry. In the following spring 
 suspicions accumulated against a man known as 
 Dr. Neill with regard to the deaths of other women, 
 and on May 5th, 1892, Clover's body was exhumed, 
 and an examination showed that death had un- 
 doubtedly been caused by strychnine. Up to within 
 a week or so previously there had been no suggestion 
 that the woman had died anything but a natural 
 death, and strychnine had not been mentioned at all. 
 Upon the trial of this man in October, 1892, for the 
 murder of Clover, the most strikincr evidence acjainst 
 him was, that about a week after Clover's death he 
 asked his landlady's daughter to go up to the house 
 where Clover had lived, as he had heard that a girl 
 had been poisoned there, and he wanted to know 
 if that was the case. His request was refused, and 
 no further notice of it was taken at the time. On 
 Nov. 26th, 1 89 1, a well-known West-end doctor 
 received a letter (undoubtedly in prisoner's hand- 
 writing) stating that Clover had been poisoned wdth 
 strychnine, accusing the doctor of murder, and 
 demanding £2,500 as the price of silence. This 
 letter the doctor immediately sent to the police, but 
 after a few attempts to discover the author, it was
 
 INDIRFXT CONFESSIONAL EVIDENCE. I07 
 
 considered as a mere mad attempt to levy blackmail. 
 When the murder was subsequently discovered and 
 investigated, it became obvious that these statements, 
 made at a time when there was no suggestion of 
 murder, and when no one in the world except the 
 murderer could have known that strychnine was 
 the cause of death, were the strongest possible 
 evidences of guilt. The prisoner was convicted 
 and executed, and had undoubtedly been the author 
 of other similar crimes perpetrated for the purposes 
 of levying blackmail (^^). 
 
 To this head may be referred the acts of con- 
 cealment, disguise, flight, and other indications of 
 mental emotion usually found in connection with 
 guilt [h). By the common law, filght was con- 
 sidered so strong a presumption of guilt, that in 
 cases of treason and felony it carried the forfeiture 
 of the party's goocis, whether he were found guilty 
 or acquitted (/) ; and the officer always, until the 
 abolition of the practice by statute (/c), called upon 
 the jury, after verdict of acquittal, to state whether 
 the party had fled on account of the charge. These 
 several acts in all their modifications are indications 
 of fear ; but it would be harsh and unreasonable to 
 
 {g) Reg. V. Neill or Cream, C. C. C. cor. Hawkins, J. See The Times, 
 Oct. iZih. et seq., 1892. Sessions Papers, vol. 116, 14, 
 
 {h) See Rex v. Cross/ield, 26 St. Tr. 216 et seq. 
 
 (/) " For he hath done what in him lay to stop the course of public 
 justice." See Foster's Discourses on the Crown Law, Disc. I. chaps, 
 ii. and iii. pp. 272 and 286. Cf. Co. Litt. s. 745, p. 391a ; Co. Rep. 
 xn. 121. 
 
 (>^) 7 & 8 Geo. IV. cap. 28, § 5, which is itself repealed by the 
 Statute Law Revision Act, 1888 (51 & 52 Vict. ch. n), but so that the 
 old law does not revive.
 
 I08 INCULPATORY MORAL INDICATIONS. 
 
 interpret them invariably as indications of guilty 
 consciousness, and greater weight has sometimes 
 been attached to them than they have fairly warranted. 
 lJ)oubtless the manly carriage of integrity always 
 commands the respect of mankind, and all tribunals 
 do homage to the great principles from which 
 consistency springs ; but it does not follow, because 
 the moral courage and consistency which generally 
 accompany the consciousness of uprightness raise 
 a presumption of innocence, that the converse is 
 always true. Men are differently constituted as 
 respects both animal and moral courage, and fear 
 may spring from causes very different from that 
 of conscious guilt ; and every man is therefore 
 entitled to a candid construction of his words and 
 actions, particularly if placed in circumstances 
 of great and unexpected difficulty (/). Mr. Justice 
 Abbott on a trial for murder where evidence was 
 given of flight, observed in his charge to the jury, 
 that " a person, however conscious of innocence, 
 might not have courage to stand a trial ; but might, 
 although innocent, think it necessary to consult his 
 safety by flight." " It may be," added the learned 
 judge, "a conscious anticipation of punishment for 
 guilt, as the guilty will always anticipate the con- 
 sequences ; but at the same time it may possibly 
 be, according to the frame of mind, merely an 
 inclination to consult his safety by flight rather than 
 stand his trial on a charge so heinous and scandalous 
 as this is " (w). In his charge to the jury upon 
 
 (/) Per Gurney, B., in Reg. v. Belaiiey ; see pp. 336-343, infra., where 
 the facts of this case are given at length. 
 {m) Rex V. Donnall, see pp. 331-336, infra.
 
 INDIRECT CONFESSIONAL EVIDENCE. lOQ 
 
 the trial of Professor Webster for niurder, Chief 
 Justice Shaw of Massachusetts, said, " Such are 
 the various temperaments of men, and so rare the 
 occurrence of the sudden arrest of a person upon 
 the charge of a crime so heinous, that who of us 
 can say how an innocent or a guiky man ought 
 or would be likely to act in such a case ? or that 
 he was too much or too little moved for an innocent 
 man ? Have you any experience that an innocent 
 man, stunned under the mere imputation of such 
 a charge, will always appear calm and collected ? 
 or that a guilty man, who by knowledge of his danger 
 might be somewhat braced up for the consequences, 
 would always appear agitated or the reverse " (;z). 
 
 It is not possible to lay down any express test by 
 which these various indications may be infallibly 
 referred to any more specific origin than the 
 operation of fear. Whether that fear proceeds from 
 the consciousness of guilt, or from the apprehension 
 of undeserved disgrace and punishment, and from 
 deficiency of moral courage, is a question which 
 can be judged of only by reference to concomitant 
 circumstances. Prejudice Is often epidemic, and 
 there have been periods and occasions when public 
 indignation has been so much and so unjustly 
 aroused, as reasonably to deter the boldest mind 
 from voluntary submission to the ordeal of a trial. 
 The consciousness that appearances have been 
 suspicious, even where suspicion has been un- 
 warrantable, has sometimes led to acts of conduct 
 
 («) Bemis's Rep. 486 (1S50). Two other reports are extant of the 
 same date, one printed in Boston and one in London.
 
 no INCULPATORY MORAL INDICATIONS. 
 
 apparently incompatible with innocence, and drawn 
 down the unmerited inlliction of the highest penalty. 
 The inconclusiveness of these circumstances is 
 strikingly exemplified by a case mentioned in a 
 preceding page, where the magistrate was so fully 
 convinced of the prisoner's innocence, that he 
 allowed him to go at large on bail to appear at 
 the assizes. The coroner's inquest having brought 
 in a verdict of ' guilty ' against him, he endeavoured 
 to escape from the danger of a trial in the excited 
 state of public feeling by flight ; but was sub- 
 sequently apprehended, convicted, and executed on 
 a charge of murder, of which he was unquestionably 
 guiltless [o). 
 
 In the endeavour to discover truth, no evidence 
 should be excluded ; but a case must be scanty of 
 evidence which demands that any considerable 
 importance should be attached to circumstances so 
 fallacious as the acts in question. It has been 
 observed, that if the evidence without them is 
 sufficient, this species of evidence is unnecessary, 
 and that if not, then the inferences from language, 
 conduct, and behaviour, seem not of sufficient weitrfit 
 to give any conclusive effect to the other proofs (/). 
 It is, in fact, a make- weight and nothing more ; and 
 care must always be taken that mere make-weights 
 are not allowed to have an exaggrerated effect. 
 
 (o) Rex V. Coleman, vide supra, p. 103 ; and see the case of AV.rv. 
 Green and others, 14 St. Tr. 1199, where several persons, one of whom 
 had voluntarily surrendered, were convicted in Scotland and executed, 
 at a period of great excitement against Englishmen, upon a groundless 
 charge of piracy and murder. 
 
 {p) Per Shaw, C. J., in P/vf. Webs.'ef's case, vide supra, pp. loS, 109.
 
 simulation of evidence. ih 
 
 Section 7. 
 
 the suppression, destruction, fabrication, and 
 simulation of evidence. 
 
 It is a maxim of law, that omnia prasumiintur contra 
 spoliatorcni, and the suppression or destruction of 
 pertinent evidence is always therefore deemed a 
 prejudicial circumstance of great weight ; for as no 
 action of a rational being is performed without a 
 motive, it naturally leads to the inference that such 
 evidence, if it were produced, would operate un- 
 favourably to the party in whose power it is to produce 
 it, and who withholds it or has wilfully deprived 
 himself of the power of producing it (^). 
 
 A chimney-sweeper having found a jewel, took it 
 to a jeweller to ascertain its value ; who, having 
 removed it from the socket, gave him three-half- 
 pence, and refused to return it. The friends of the 
 finder encouraged him to bring an action against 
 the jeweller; and Lord Chief Justice Pratt directed 
 the jury, that unless the defendant produced the 
 jewel, and showed it not to be of the finest water, 
 they should presume the strongest against him, and 
 make the value of the best jewels the measure of 
 their damages (r). In an action of trover for a 
 diamond necklace which had been unlawfully taken 
 out of the owner's possession, it appeared that some 
 of the diamonds were seen shortly afterwards in the 
 defendant's possession, and that he could give no 
 
 {q) Starkie's L. of Ev., 4th ed. 1853, pp. 755 et scq. 
 (r) Armory v. Del amir ie, I Strange, 505 ; and see Rex v. Lord 
 Melville^ 29 St. Tr. at col. 1456.
 
 112 INCULPATORY MORAL INDICATIONS. 
 
 satisfactory account how he came by them : the jury 
 were directed to presume that the whole set of 
 diamonds had come to the defendant's hands, and 
 that the full value of the whole was the proper 
 measure of damages (s). On an ejectment involving 
 the title to large estates in Ireland, the question 
 being whether the plaintiff was the legitimate son 
 of Lord Altham, and therefore prior in right to the 
 defendant, who was his brother, it was proved that 
 the defendant had procured the plaintiff, when a 
 boy, to be kidnapped and sent to America, and on 
 his return, fifteen years afterwards, on occasion of 
 an accidental homicide, had assisted in an unjust 
 prosecution against him for murder : it was held 
 that these circumstances raised a violent presumption 
 of the defendant's knowledge of title in the plaintiff; 
 and the jury were directed that the suppressor and 
 the destroyer were to be considered in the same 
 light as the law considers a spoliator, as having 
 destroyed the proper evidence ; that against him, 
 defective proof, so far as he had occasioned such 
 defect, must be received, and everything presumed 
 to make it effectual ; and that if they thought the 
 plaintiff had given probable evidence of his being 
 the legitimate son of Lord Altham, the proof might 
 be turned on the defendant, and that they might 
 expect satisfaction from him that his brother died 
 without issue (/). On a bill filed against a defen- 
 dant who had destroyed a deed by which the 
 
 (s) Mortimer \. Craddock, 12 L. J. N. S. (C. P) 166. 
 
 (/) Craig d. A7inesley v. Earl of Anglesea, 17 St. Tr. 1416; 
 and see the Tracy Peerage, 10 C. & F. 154; Cltenties v. Pezzey, 
 I Camp. 8 ; Lawton v. Swcejiey, 8 Jurist, 964 ; Greenleaf's L. of 
 Ev. s. yj.
 
 SIMULATION OF EVIDENCE. II3 
 
 plaintiff claimed under certain limitations a real 
 estate, secondary evidence was given of the limita- 
 tions in the deed ; but the evidence, as the witnesses 
 gave it, was of limitations which could not legally 
 take effect, being of a term of years after an indefinite 
 failure of issue, — Sir Joseph Jekyll, the Master of 
 the Rolls, said that as against the man who had 
 destroyed the instrument which would have shown 
 what the rights of the plaintiff were, he would pre- 
 sume even what the plaintiff had not proved, that 
 the limitation was to take place after the failure of 
 issue in the life-time of a person then in being (u). 
 
 The foregoing illustrations of the rule of evidence 
 under consideration, are among the most remarkable 
 recorded cases of its application; nor are they the 
 less pertinent because they arose in civil cases, since 
 the general principles of evidence are the same in 
 all cases, whether civil or criminal ; and no incon- 
 siderable proportion of the criminal trials which occur, 
 present examples of its practical bearing and effect [x). 
 
 Amongst the most forcible of presumptive indica- 
 tions may be mentioned, all attempts to pollute or 
 disturb the current of truth and justice, or to prevent 
 a fair and impartial trial, by endeavours to intimi- 
 date, suborn, bribe, or otherwise tamper with the 
 prosecutor, or the witnesses, or the officers or 
 ministers of justice, the concealment, suppression, 
 destruction, or alteration of any article of real evi- 
 dence ; any of which acts, clearly brought home to 
 
 (u) Da/s/on v. Coatsivorth, i P. Wms. 731. 
 
 \x) Rexv.DelaMoite,2\ St.Tr.8io; AV^v.i?«r^/^//,4B.&Ald.atp. 12a 
 
 C.E. I
 
 1 14 INCULPATORY MORAL INDICATIONS. 
 
 the prisoner, or liis ag-cnts, are of a most prejudicial 
 effect, as dcncjtino- on his part a consciousness of 
 guilt, and a desire to evade the pressure of facts 
 tending- to estabh"sh it (7). Perhaps in no case have 
 circumstances of this kind told with such fatal effect 
 as in that of Donellan, who was convicted of the 
 murder of Sir Theodosius Boughton by poison. 
 The prisoner, after having admiriistered the fatal 
 draught in the form of medicine, rinsed out the phial 
 which had contained it, and when that fact was 
 stated before the coroner, he was observed to check 
 the witness by pulling her sleeve. In his charge to 
 the jury, Mr. Justice Duller laid great stress upon 
 that circumstance. " Was there anything so likely," 
 said the learned judge, " to lead to a discovery as 
 the remains, however small they might have been, 
 of medicine in the bottle ? But that is destroyed 
 by the prisoner. In the moment he is doing it, he 
 is found fault with. What does he do next? He takes 
 the second bottle, puts water into that, and rinses 
 it also. He is checked by Lady Boughton, and 
 asked what he meant by it — why he meddled with 
 the bottles. His answer is, he did it to taste it; 
 but did he taste the first bottle ? Lady Boughton 
 swears he did not. The next thing he does, is to 
 eet all the thin^js sent out of the room ; for when 
 the servant comes up, he orders her to take away 
 the bottles, the basin, and the dirty things. He 
 puts the bottles into her hand, and she was going to 
 carry them away, but Lady Boughton stopped her. 
 Why were all these things to be removed ? Why 
 
 (_y) J^ex V. Crossjie/d, 26 St. Tr. 217 ; Rex v. Donclhin, p. 324, infra; 
 Rex V. Doniiall, p. 331, infra; Reg. v. Palmer, p. 344, injra.
 
 SIMULATION OF EVIDENCE. II5 
 
 was it necessary for the prisoner, who was fully 
 advertised of the consequence by Lady Boughton, to 
 insist upon having everything removed ? Why should 
 he be so solicitous to remove everything that might 
 lead to a discovery?" After dealing with the 
 prisoner's conduct in other matters, the learned 
 judge continued : "Then as to the conduct of the 
 prisoner before the coroner. Lady Boughton had 
 mentioned the circumstance of the prisoner's rinsing 
 out the bottle — one of the coroner's jury swears that 
 he saw him pull her by the sleeve. Why did he do 
 that } If he was innocent, would it not be his wish 
 and anxious desire, as he expresses in his letter, 
 that all possible inquiry should be made ? W^hat 
 passes afterwards ? When they got home, the 
 prisoner tells his wife that Lady Boughton had 
 given this evidence unnecessarily ; that she was not 
 obliged to say anything but in answer to questions 
 that were put to her, and that the question about 
 rinsing out the bottles was not asked her. Did the 
 prisoner mean that she should suppress the truth ? 
 that she should endeavour to avoid a discovery as 
 much as she could by barely saying Yes or No to the 
 questions that were asked her, and not disclose the 
 whole truth } If he was innocent, how could the truth 
 affect him ? but at that time the circumstance of rinsing 
 out the bottles appeared even to him to be so decisive 
 that he stopped her on the instant, and blamed her 
 afterwards for having mentioned it. All these," said 
 the learned judge, " are very strong facts to show 
 what was passing in the prisoner's own mind " (2). 
 
 {z) Gurney's Shorthand Report, referred to supra, p. 2)7' See p. 324, 
 infra, for the facts of the case. 
 
 I 2
 
 Tl6 INCULPATORY MORAL INDICATIONS. 
 
 A boatman was convicted of stealing rum which 
 had been delivered to his master, a carrier by canal, 
 for conveyance from Liverpool to Birmingham, The 
 carrier's agent at Liverpool had taken a sample of 
 the spirit and tested its strength ; and upon delivery 
 at its place of destination, the spirit was found to 
 be under proof, and the portion abstracted had 
 been replaced with water. The carrier's clerk, 
 on the complaint of the consignee, went to the 
 boat where the prisoner was, to require explana- 
 tion ; but as soon as he had stepped into it, the 
 prisoner pushed him back upon the wharf, and 
 forced the boat Into the middle of the canal, where 
 he broke three jars and emptied their contents, 
 which by the smell were proved to be rum, into the 
 canal {a). 
 
 In a case already mentioned, the prisoner, who 
 was helping in the house of a medical man, had 
 given to his wife a cup of tea, which tasted very 
 hot and unpleasant. After taking it, the mistress 
 had been very ill. A few days later the mistress 
 was in the kitchen, and mixed herself some brandy 
 and water in a cup. She went into the garden, 
 leaving the teacup on the kitchen table. When 
 she came back she tasted the brandy and water, and 
 exclaimed, " What a disagreeable taste ; it is exactly 
 like the tea." At that moment the prisoner drew 
 the cloth off the kitchen table, and the teacup was 
 broken. The pieces were throw^n away, but after- 
 wards recovered, when they were found to be coated 
 
 {a) Rex V. Thomas^ Warwick Spring Ass. 1836, coram Bosan- 
 quet, J.
 
 SIMULATION OF EVIDENCE. II7 
 
 with a sediment which, upon being analysed, turned 
 out to be corrosive subUmate {S). 
 
 Other facts of the same kind are the common 
 cases of the obHteration, effacing, or otherwise 
 removing marks of ownership or identity from 
 plate, linen, or other articles of property, or of 
 stains of blood, or other matter from the person 
 or dress of the accused, or the suggestion or insinua- 
 tion of false, groundless, or deceptive hypotheses, 
 or explanations in order to neutralize or account for 
 adverse facts or appearances. It is on the same 
 principle that, by statute, if any person on board a 
 vessel which is chased by an officer of the preventive 
 service, shall throw overboard, stave, or destroy any 
 part of her lading, the vessel is declared to be for- 
 feited ; and that goods liable to duty concealed on 
 board any vessel are also declared to be forfeited (c) ; 
 and that other similar statutable presumptions have 
 been created ; and that whenever absent witnesses are 
 so mixed up with transactions before the Court as to 
 give rise to comments on their not being present, 
 it is the common practice to prove the cause of 
 their non-attendance, as, for instance, death, illness, 
 or their having quitted the country {d). 
 
 Another fact of this kind is the attempt to prevent 
 post-mortem examination by the premature interment 
 
 {b) Reg. V. Sarah Kibbler, Warwick Autumn Ass. 18S9, coramWWls,]. 
 
 (c) 8 & 9 Vict. c. 87. ss. 5 (d), 6, and 29. See now the Customs 
 Consolidation Act, 1876 (39 & 40 Vict. c. 36). See §§ 177, 179, 180, 
 183, &c. 
 
 {d) Per Pollock, L. C. B., in Cowper v. French^ Exch. N. P. J uly loth, 
 1850.
 
 Il8 INCULPATORY MORAL INDICATIONS. 
 
 of human remains, under the pretext that it is ren- 
 dered necessary by the state of the body, since it 
 cannot but be known that such examination will 
 always furnish important, and generally conclusive, 
 evidentiary matter as to the cause of death (e). So 
 also is the concealment of death by the destruction 
 or attempted destruction of human remains {/) ; 
 but in this case the presumption of criminality results 
 from the act of concealment rather than from the 
 nature of the means employed, however revolting, 
 which must be regarded only as incidental to the 
 fact of concealment and not as aggravating the 
 character and tendency of the act itself. Where a 
 prisoner tried for murder admitted that he had cut 
 off the head and legs from the trunk of a female, 
 and concealed the remains in several places, but 
 alleged that her death had taken place by accident 
 while she was in his company, and that in the alarm 
 of the moment, and to prevent suspicion, he had 
 determined to conceal the death, Lord Chief Justice 
 Tindal told the jury that the concealment of death 
 under such circumstances, had always been consi- 
 dered to be a point of the greatest suspicion, but that 
 this evidence must be received with a certain degree 
 of modification, and especially in a case where the 
 feelings might be excited by the singular means of 
 concealment adopted by the prisoner ; that this point 
 of evidence was therefore for the consideration of 
 the jury, and that it was for them to judge how far 
 
 (e) Rex V. Donellan, p. 324, infra; Rex v. Donnall, p. 331, infra; 
 Rex V. Palmer, p. 344, ijifra. 
 
 (/) Rex V. GardeUe, 4 Celebrated Trials, 400 ; Rex v. Cook, p. 290, 
 infra; Reg. v. Good, C. C. C. May, 1842.
 
 SIMULATION OF EVIDENCE. IIQ 
 
 it was a proof of the prisoner's guilt ; but the mert 
 tfeneral fact of the concealment, added the learned 
 judge, is to be considered, and not the circumstances 
 under which it took place (^). 
 
 So, too, in cases where it is a question whether 
 death has occurred accidentally or from suicide, or is 
 attributable to murder, concealment of the body is 
 often a grave inculpatory fact. In a case tried at 
 Edinburgh in 1889, it was proved that prisoner and 
 the deceased, a man named Rose, who were casual 
 touring acquaintances, took a lodging together, about 
 July the 13th. On the 16th they climbed Goat Fell 
 together. Late t,hat night, prisoner, who had been 
 usino- a false name, returned alone to the lodcrintrs 
 and carried off both his own and Rose's property, 
 leaving the bill unpaid. Rose's body was afterwards 
 found hidden by stones near a cliff over which he 
 mio'ht have fallen in descending Goat Fell. The 
 medical evidence was divided as to whether his 
 injuries were more probably caused by a fall or by 
 blows from a stone. The defence was that Rose met 
 his death by an accident, that the prisoner had parted 
 with him previously, and having decamped with his 
 property, was afraid to come forward when inquiries 
 were made. This theory left it unexplained as 
 to how the body became covered up, or who did 
 it, or what reason there was for doing it. The 
 jury by a majority found the prisoner guilty of 
 murder {h). 
 
 {g) Rex V. Greenacre, C. C. C. April, 1837, 8 C. & P. 35 ; and 
 see Professor Webster's case, Ikmis's Report, p. 109, sup/a. 
 {Ji) Reg. V. Laurie. See limes, November 9th and nth, 1889.
 
 120 INCULPATORY MORAL INDICATIONS. 
 
 Other such facts are the officious affectation of 
 grief and concern as an artifice to prevent or avert 
 suspicion (/), false representations as to the state 
 of a party's health, or the utterance of obscure or 
 mysterious predictions or allusions, the pretence of 
 supernatural dreams, noises, or other omens or inti- 
 mations, calculated to prepare the connections for the 
 event of sudden death, and to diminish the surprise 
 and alarm which naturally follow such an event. A 
 woman who was convicted of murder, about a month 
 before the catastrophe told the mother of an infant 
 child whom, as well as her own husband and child, 
 she poisoned, that she had had her fortune told, and 
 that within six weeks three funerals would go from 
 her door, those of her husband and son and the 
 child of the person she was addressing {j). 
 
 A case tried in the Supreme Court of Massa- 
 chusetts affords a useful illustration of the value of 
 this kind of evidence. Sarah Jane Robinson, a 
 widow, was charged with the murder of her brother- 
 in-law. Freeman, by arsenical poisoning. Freeman 
 had a wife and two children, and in 1882 his life 
 was insured for two thousand dollars. The prisoner 
 knew this. She was in urgent want of money, and 
 the motive sufja-ested for the crime was to set this 
 insurance money. In order to prove her guilty 
 intention, evidence was admitted that in February, 
 1885, Mrs. Freeman was taken ill with pneumonia, 
 
 (/) Rex V. Blandy, i8 St. Tr., 1118 ; Rcxw. Patch, p. ^^(^o^ infra. 
 
 {j) Rexv. Hfllroyd, 6 Cel. Tr. 167. And see Rex v. Doncl/an, p. 324, 
 infra; and Rex v. Donnall, p. 331, infra. See also Reg. v. Sarah 
 Kibbler, pp. 67, 63, supra, and p. 122, infra.
 
 SIMULATION OF EVIDENCE. 121 
 
 and was recovering until the prisoner came to 
 nurse her, after which she developed symptoms ot 
 arsenical poisonino- and died ; but the doctor at the 
 time certified death from pneumonia. During Mrs. 
 Freeman s illness, and after her death, the prisoner 
 asked various people to persuade Freeman to come 
 and live with her instead of with his own sister. 
 Immediately after the funeral she urged Freeman 
 to assign the policy of insurance to her. He went 
 to live with her, and assigned the policy to her 
 on May 13th. During Mrs. Freeman's illness, and 
 when she seemed likely to recover, the prisoner 
 said that she had dreamed that Mrs. Freeman 
 would die. After Freeman came to live with her 
 she began to abuse him, and say he would be 
 better dead. On June 17th she sent him to see his 
 mother, '* because they might never meet again." 
 For about three weeks before his death the prisoner 
 professed that she had had " warnings" that Freeman 
 would die. On Monday, June 22nd, Freeman was 
 taken ill, and prisoner at o;.ce said he would never 
 leave the house alive. She attended him until 
 Friday. On that night his sister sat up with him, 
 and gave him his medicine. On Saturday morning 
 he was better, but relapsed about noon, and died 
 before midnight. He died of arsenical poisoning. 
 During the illness she expressed anxiety about the 
 insurance money, as she had failed to get her 
 husband's insurance. In September she received 
 the insurance money, and instead of investing 
 it for Freeman's child (one had died) she used it 
 to pay her own debts. There was no evidence 
 that prisoner had arsenic in her possession at any
 
 122 INCULPATORY MORAL INDICATIONS. 
 
 time, and she went into the box and contradicted 
 much of this evidence, but she was convicted and 
 sentenced to death (/'). A woman who was con- 
 victed of administering poison with intent to murder 
 had told a witness, at a time when the intended 
 victim had nothing very serious the matter with 
 her, tliat she was not likely to recover, for that foot- 
 steps had been heard on the landing when nothing 
 could be seen, and that that was a token of death (/). 
 
 The fabrication of simulated facts and appearances 
 calculated to create alarm, or otherwise to give a 
 delusive tendency and interpretation to inculpatory 
 facts, is an artifice frequently resorted to, for the 
 avoidance, neutralization, or explanation of circum- 
 stances naturally presumptive of guilt ; the resort to 
 which is of the most prejudicial criminative tendency, 
 inasmuch as it necessarily implies an admission of 
 their truth, and a consciousness of the inculpatory 
 effect, if uncontradicted or unexplained, of the facts 
 which it thus seeks to divest of their natural signi- 
 ficance. As instances of such simulated facts may 
 be mentioned the pretence of having partaken of a 
 poisonous draught which has caused death [in) ; the 
 self-infliction of slight wounds to raise the inference 
 that the offender had himself been the object of 
 deadly attack [ii) ; the attempt to fix guilt or sus- 
 picion upon others by the groundless suggestion of 
 
 (/(') The official report of the trial of Sarah Jaiie Robinson, 
 Boston, 1880. 
 
 (/) Reg. V. Sarah Kibbler, Warwick Autumn Ass., 1889, coram Wills, J. 
 
 {in^ Rex V. Nairn atui Ogilby, 19 St. Tr. 1284; Reg. v. Wesconibe^ 
 Exeter Sum. Ass. 1839. 
 
 («) Reg. V. Bolain, Durham Sum. Ass. 1839.
 
 SIMULATION OF EVIDENCE. I23 
 
 malicious feelinfjs (o) ; the placing- of a razor, pistol, 
 or other weapon in the hand of or near to a dead 
 body to lead to the notion of suicide, and many 
 other such acts. But cunning is "a sinister or 
 crooked wisdom," and not unfrequently the very 
 means employed to prevent suspicion, lead to the 
 discovery of the real fruth. A murderer, to simulate 
 the appearance of suicide, placed a razor in the left 
 hand of a right-handed woman (/). A man was found 
 shot, and his own pistol lying near him ; but, although 
 no person had been seen to leave the house, the 
 suspicion of suicide was negatived by the fact that 
 the ball was too large to have entered the pistol (^/). 
 
 A very remarkable case of this kind is recorded in 
 the State Trials, which was tried at Hertford Assizes, 
 4 Car. I., before Mr. Justice Harvey. A woman 
 was found dead in her bed, with her throat cut, and 
 a knife sticking in the floor. Several persons of the 
 family who slept in the adjoining room deposed that 
 the deceased went to bed with her child, her husband 
 being absent, that the prisoners slept in the adjoining 
 room, and that no person afterwards came into the 
 house. The coroner's jury were inclined to return 
 a verdict oi felo de se, but suspicion being excited 
 against these individuals, the jury, whose verdict 
 was not yet drawn up in form, desired that the 
 remains of the deceased might be taken up, and 
 accordingly, thirty days after her death, they were 
 taken up, and the jury charged the prisoners with 
 
 ip) Rex V. Patch, p. 390, infra. 
 
 {p) Rex v. Fitter, Warwick Sum. Ass. 1834, coram Taunton, J. 
 
 {g) Paris and Fonblanque, Medical Jurisprudence, vol. iii. p. 39,
 
 124 IN'CULPATORY MORAL INDICATIONS. 
 
 the murder. Upon their trial they were acquitted, 
 but so much against the evidence, that the judge let 
 fall his opinion that it were better an appeal (r) were 
 brought than so foul a murder should escape 
 unpunished. Accordingly an appeal was brought by 
 the child against his father, grandmother, and aunt, 
 and her husband. On the trial of the appeal before 
 Chief Justice Hyde, the evidence adduced was, that 
 the deceased lay in a composed manner in her bed, 
 with the bedclothes undisturbed, that her child lay 
 by her side, that her neck was broken, and that her 
 throat was cut from ear to ear. There was no blood 
 in the bed, except a tincture on the bolster where 
 her head lay. From the bed's head there was a 
 stream of blood on the floor, which ran along till it 
 pounded in the bendings of the floor, and there was 
 another stream of blood on the floor at the bed's 
 foot, which pounded also on the floor to a very great 
 quantity ; but there was no communication of blood 
 between these two places, nor upon the bed. A 
 bloody knife was found in the morning sticking in 
 the floor, at some distance from the bed ; but the 
 point of the knife, as it stuck, was towards the bed, 
 and the handle from the bed ; and there was the 
 print of the thumb and fingers of a left hand. It 
 was beyond all question, from the circumstances, 
 that the deceased had been murdered, for if she had 
 committed suicide by cutting her own throat, she 
 could not by any possibility have broken her own 
 
 (r) For an account of this obsolete process — a survival of the primitive 
 trial by battle — see As/ifordw. Tlwmfoti, i B. & Aid. 405 ; see p. 249, 
 infra. The history of the subject will be found in Pollock and Maitiand 
 Hist. Eng. Law ii. 464 — 481 ; also Hawk P. C. ii. c. 23 ; Stephen 
 Hist. Cr. Law of England i. 244—50.
 
 SIMULATION OF EVIDENCE. 125 
 
 neck in bed. The father, grandfather, and aunt 
 were convicted and executed [s). 
 
 In a more recent case the evidence, otherwise 
 doubtful, was rendered quite conclusive by the forgery 
 and fabrication of a letter by the accused. The 
 prisoner was charged with the murder of his wife by 
 arsenical poisoning. The defence was suicide. He 
 had been married twelve years, lived happily with his 
 family, and had an excellent character, and although 
 empty arsenic paper was found in his pocket, his 
 explanation was reasonable, and he was away from 
 home at the time when his wife was first taken ill, while 
 others had opportunities of administering the poison. 
 There was little or no motive shown for the crime, and 
 had the case rested there, the prisoner would probably 
 have been acquitted. But it was proved that soon 
 after the wife's death, he took a purse out of her 
 pocket, and pretended to discover a letter written by 
 her to her sister-in-law which amounted to a confession 
 that she had taken her own life. There was evidence 
 that this letter was in the prisoner's own hand- 
 writing, and it was inconsistent with the woman's 
 dying statements and with other circumstances in 
 the case. He was convicted, and before execution 
 confessed both the murder and the forgery (/). 
 
 An unsuccessful attempt to establish an a/idi is 
 always a circumstance of the greatest weight against 
 
 (j) Rex V. Okevia7t and others^ 14 State Trials 1324 ; 10 Hargrat'c's 
 State Trials, App. ii. p. 29. 
 
 (/) Reg. V. Beamish, Warwick Winter Assize 1S61, coram Willes, J» 
 See Times, December 19th, 1861. Ann. Reg. 1861, p. 250.
 
 126 INCULPATORY MORAL INDICATIONS. 
 
 the prisoner, because the resort to that kind of 
 defence impHes an admission of the truth and 
 relevancy of the facts alleged, and the correctness of 
 the inference drawn from them if they remain 
 uncontradicted. This defence is frequently fabri- 
 cated, and is liable to many sources of fallacy, which 
 will be more appropriately considered in a subse- 
 quent part of this essay ; and a learned judge has 
 said, that if the defence turns out to be untrue, it 
 amounts to a conviction {u). But it must not be over- 
 looked that — such is the weakness of human nature 
 — there have been cases where innocence, under the 
 pressure of menacing appearances, has fatally com- 
 mitted itself, by the simulation of facts for the 
 purpose of evading the force of circumstances of 
 apparent suspicion. When the defence of an a/idi 
 fails, it is generally on the ground that the witnesses 
 are disbelieved and the story considered to be a 
 fabrication ; and frorn the facility with which it may 
 be fabricated, it is commonly entertained with 
 suspicion, and sometimes, perhaps, unjustly so [z). 
 
 Circumstances such as those which have been 
 enumerated are justly considered to be incompatible 
 with integrity and Innocence, and referable to a con- 
 sciousness of guilt and to a desire to evade the force 
 of facts Indicative of it ; and they consequently 
 subject the party guilty of them to very unfavourable 
 and Injurious inferences. 
 
 Occasionally facts are suppressed or tampered 
 
 (u) Per Daly, B., in J?ex v. Killen, 28 St. Tr. 1040. 
 {x') See Rex v. Robinson^ Old Bailey Sess. Papers, 1824.
 
 SIMULATION OF EVIDENCE. 127 
 
 with by those concerned in the prosecution, and then 
 the same presumption arises, and generally tells with 
 great force against a case which receives such 
 support. It is customary on every criminal charge 
 to give evidence of the arrest of the prisoner, and 
 of his answer upon arrest to the charge. When 
 evidence of this kind is omitted without adequate 
 explanation, it is always a circumstance of suspicion. 
 A remarkable instance of the kind occurred at the 
 Leeds Spring Assizes, 1886. A man was tried for 
 rape. The evidence appeared almost conclusive. 
 The prisoner alleged consent, which was indignantly 
 repudiated by the prosecutrix — a married woman 
 living with her husband, in whose house the offence 
 was alleged to have been committed. The husband 
 denied that he had ever suspected or accused his 
 wife of infidelity with the prisoner. The case 
 concluded with the evidence of a police inspector 
 who received the prisoner into custody at the station, 
 but without the evidence of the constable who 
 effected the arrest. The judge insisted upon the 
 constable being sent for, and adjourned the case for 
 some hours for that purpose, keeping the jury 
 together (as was then necessary on such a charge) in 
 the meantime. When the constable arrived he proved 
 that on the night of the alleged rape he had been in 
 the street where the prosecutrix and her husband 
 lived, when the husband and wife were having a 
 violent altercation, the husband having turned her into 
 the street, alleging that he had caught her with the 
 prisoner under the most compromising circumstances. 
 Some two hours afterwards the husband and wife 
 had come to him on his beat and made an accusation
 
 128 INCULPATORY MORAL INDICATIONS. 
 
 of rape ayainst the prisoner. There was no dorbt 
 that the constable's evidence had been deliberately 
 suppressed, and the prisoner was acquitted (y). 
 
 Section 8. 
 statutory presumptions. 
 
 Upon the principle of the rule of presumption 
 ag'ainst persons in whose possession the fruits of 
 crime are discovered recently after its commission, 
 many acts have been constituted legal presumptions 
 of guilt by statute, so as to throw the onus of rebut- 
 ting or displacing such presumptions upon the party 
 accused ; such, for example, among many others, as 
 the making or possessing, or buying or selling coining 
 tools or instruments {z) ; the possession of forged 
 bank-notes, knowing the same to be forged, without 
 lawful excuse (a) ; the possession of public stores 
 under the control of any Secretary of State or public 
 department (d) ; the acting or behaving as the 
 master or mistress of a disorderly house (c) ; the 
 finding of instruments of gaming in any places 
 suspected to be used as a common gaming-house (^), 
 and the being found by night in possession, without 
 "lawful excuse, of any picklock, key, crow, jack, 
 bit, or other instrument of housebreaking (^), The 
 
 (j) R. V. Eli Gledhtll, May 2ist, 1886, coram Wills, J. 
 
 {z) St. 2 W. IV. c. 30, s. 10. See now 24 & 25 Vict. c. 99, s. 24. 
 
 {a) St. II G. IV. and i W. IV. c. 66, ss. 12 — 19, and 28. See now 
 t\ & 25 Vict. c. 98, ss. 13 and 45. 
 
 {b) St. 9 & 10 W. III. c. 41 ; and 39 & 40 G. III. c. 89. See now 
 \}te I'ublic Stores Act, 1875 (38 & 39 Vict. c. 25, s. 7) 
 
 (c) St. 21 G. IIL c. 49- 
 
 r./^, St. 8 & 9 Vict. c. 109. 
 
 {e) St. 14 & 15 Vict. c. 19, s. I. See now 24 & 25 Vict. c. 96, s. 58,
 
 STATUTORY PRESUMPTIONS. I2g 
 
 revenue laws abound with similar instances of 
 presumptions created for the purpose of protecting 
 the public against infractions of those laws. 
 
 By a remarkable anomaly, probably grounded 
 upon some supposed analogy to the rule alluded to, 
 the sale by a shopman of a book or newspaper con- 
 taining libellous matter, was formerly held to 
 constitute a presumption of publication by the 
 authority of the master, although no evidence were 
 given to show that the sale was with his authority or 
 privity ; it being, however, open to him to contradict 
 such presumption by evidence that the sale was in 
 fact unauthorized, and was not within the scope 
 of the general instructions given to the shopman {/). 
 This carried the doctrine of criminal liability to an 
 unwarrantable extent. Lord Campbell's Act [g), 
 passed in 1843, ^^-^ brought this part of our law into 
 harmony with the other parts of the system, by 
 providing that whensoever, upon any trial of any 
 indictment or information for the publication of a 
 libel under the plea of not guilty, evidence shall 
 have been given which shall establish a presumptive 
 case of publication against the defendant by the act 
 of any other person by his authority, it shall be com- 
 petent to him to prove that such publication was made 
 without his authority, consent, or knowledge, and that 
 it did not arise from want of due care on his part. 
 
 (/) Rex\. Alinon, 20 State Trials, 803, at cols. 838 and 842. S. C. 
 5 Burr. 2686. Rex v. Cvthell, 27 State Trials, 641, is also a good 
 illustration of the Common Law, and is notable for Lord Erskine's 
 speech on behalf of the defendant. Cf. Reg. v. Holbrook, 3 Q. B. D. 
 60 ; 47 L. J. Q. B. 35, and 4 O. B. D. 42 ; 48 L. J. (2- B. 113. 
 
 (g) St. 6 & 7 Vict. c. 96, s. 7. For the liability in civil cases, see 
 C.E. K
 
 130 INCULPATORY MORAL INDICATIONS. 
 
 Of Statutory presumptions this general notice 
 is sufficient, as it is the object of this essay to 
 consider the natural connection between facts and 
 the presumptions to which they naturally lead, and 
 not to enumerate the presumptions created by 
 positive law(//). 
 
 It Is evident that all such arbitrary presumptions 
 depend for their reasonable force and authority upon 
 the obnoxious character/^/^ sc of the particular actions 
 or circumstances which are thus made the foundations 
 of legal presumptions — upon their strict connection 
 with and relation to some specific legal offence, or the 
 intention to commit such offence — and upon the 
 facility of proof by the accused of matter of legal 
 excuse where such matter exists. 
 
 In the interpretation of laws which create positive 
 presumptions of guilt, it is essential to distinguish 
 between the letter and the spirit of the enactment ; 
 to such laws the maxim of the Civil Law Is specially 
 pertinent, " sci7''e leges non est earuni verba tenerey 
 sed vim ac potesiatem'' {{). It is not practicable 
 to anticipate all the cases which may fall within 
 the language of the rule, or to anticipate the neces- 
 sary exceptions which a proper regard to the 
 intention of the legislature would exclude from its 
 operation, and which it is reasonable to conclude 
 that the legislature would have expressly excluded 
 
 Enmiens v. Pontic, 16 O. B. D. 354 ; Vizeiclly v. Mudie's Select 
 Library^ 1900, 2 Q. B. 170. 
 
 {h) See a copious collection of such presumptions in i Taj lor's L. 
 of Ev., 9th ed. 1895, Part L, ch. 5. 
 
 (/) Digest. I. iii. 17.
 
 STATUTORY PRESUMPTIONS. I3I 
 
 if they had been foreseen. However peremptory 
 and apparently conclusive, therefore, the language 
 of such enactments may be, it is not allowed to 
 exclude or control the just force and operation of 
 such concomitant circumstances as tend to repel the 
 presumption of the inahis animiLS arising from the 
 bare facts which constitute the presumption {k). 
 
 These considerations introduce us to what is known 
 as the doctrine of " mens rea,'' after Lord Coke's 
 famous maxim, " actus non facit rcum, nisi mens sit 
 rear It is a general and fundamental rule that the 
 mind must be at fault before there can be a crime, 
 and criminal statutes must usually be construed with 
 that qualification. But it is not an inflexible rule : 
 a statute may relate to such a subject-matter, and 
 may be so framed as to make an act criminal whether 
 there has been an intention to break the law or 
 not. There is a large body of municipal law in the 
 present clay which is so conceived. Bye-laws are 
 constantly made regulating the width of thorough- 
 fares, the height of buildings, and other matters 
 necessary for the general welfare, health, or con- 
 venience, and the breach of them constitutes an 
 offence, and is a criminal matter. In such cases it 
 would, generally speaking, be no answer to pro- 
 ceedings for infringement of the bye-law that the 
 person committing it has bona fide va^idi^ an accidental 
 miscalculation or an erroneous measurement 
 
 Whether an enactment is to be construed in this 
 seii.se, or with the qualification ordinarily imported 
 
 (Jc) I'uficndorf, lib. v. c. 12 ; cf. 2 East, P. C. 765. 
 
 K 2
 
 132 INCULPATORY MORAL INDICATIONS. 
 
 into the construction of criminal statutes that there 
 must be a guilty mind, must depend upon the 
 subject-matter of the enactment, and the various 
 circumstances that may make the one construction 
 or the other reasonable or unreasonable (/). Regard 
 must be had to the scope of the Act, and to the object 
 for which it was apparently passed (;//). A few 
 illustrations of the application of these principles 
 will be useful, and will show how difficult it is to lay 
 down any absolute rule on the subject. 
 
 A widow woman was indicted before Mr. Justice 
 Foster under 9 & 10 Wm. III. c. 41 {71), for having 
 in her custody divers pieces of canvas marked with 
 the king's mark, she not being employed by the 
 Commissioners of the Navy to make the same for 
 the kiu'T-'s use. The canvas was marked as charged 
 in the indictment, and was clearly proved to be such 
 as was made for the use of the navy, and to have 
 been found in the defendant's custody. She did not 
 attempt to show that she was within any exception 
 of the Act, as being a person employed to make 
 canvas for the navy ; nor did she olfer to produce 
 any certificate from any officer of the crown, touching 
 the occasion of such canvas coming into her posses- 
 sion. Her defence was, that when there happened 
 to be in his Majesty's stores a considerable quantity 
 of old sails, no longer fit for that use, it had been 
 customary for the persons entrusted with the stores 
 
 (/) Per Wills, J., in Reg. v. Tohon, L. R. 23 Q. B. D. at p. 173. 
 (w) Per Stephen, J., ibid -sX p. 191. 
 
 {li] This has been repealed, and its place is now taken by the 
 Public Stores Act, 1875 (38 & 39 Vict. c. 25 s. 7).
 
 STATUTORY PRESUMPTIONS. I33 
 
 to make a public sale of them in lots larger or smaller, 
 as best suited the purpose of the buyers ; and that 
 the canvas produced in evidence, which had been 
 made up long since, some for table-linen and some 
 for sheeting, had been in common use in the defen- 
 dant's family a considerable time before her husband's 
 death ; and upon his death came to the defendant, 
 and had been used in the same open manner by her 
 to the time of prosecution. The counsel for the crown 
 insisted that as the Act allows of but one excuse, the 
 defendant, unless she could avail herself of that, 
 could not resort to any other ; that, if the canvas 
 were really bought of the commissioners, or of per- 
 sons actinof under them, there ou^ht to have been 
 a certificate taken at the time of the purchase, and 
 that the second section admits of no other excuse. 
 But the learned judge was of opinion, that though 
 the clause of the statute which directs the sale of 
 these things had not pointed out any other way 
 of indemnifying the buyer than the certificate, and 
 though the second section seemed to exclude any 
 other excuse for those in whose custody they should 
 be found, yet still the circumstances attending every 
 case which might seem to fall within the Act, ought 
 to be taken into consideration ; otherwise a law 
 calculated for wise purposes, might, by a too rigid 
 construction of it, be made a handle for oppression. 
 There was no room to say that this canvas came 
 into the possession of the defendant by any act of 
 her own ; it was brought into family use in the life- 
 time of her husband, and continued so to the time 
 of his death ; and by act of law it came to her. 
 Things of that kind have frequently been exposed
 
 134 INCULPATORY MORAL INDICATIONS. 
 
 to public sale ; and though the Act pointed out an 
 expedient for the indemnity of buyers, yet probably 
 few buyers, especially where small quantities had 
 been purchased at one sale, had used the caution 
 suo-crested by the Act. And if the defendant's hus- 
 band really bought the linen at a pu'olic sale, but 
 neglected to take a certificate, or did not preserve 
 it, it would be contrary to natural justice, after such 
 a length of time, to punish her for his neglect. He 
 therefore thought the evidence given by the defen- 
 dant proper to be left to the jury ; and directed 
 them, that if upon the whole evidence they were of 
 opinion that the defendant came to the possession 
 of the linen without any fraud or misbehaviour 
 on her part, they would acquit her; and she was 
 accordingly acquitted [o). 
 
 On the other hand, where a woman was indicted 
 under 8 & 9 Vict. c. ioo, s. 44, for receiving more 
 than two lunatics into a house not duly licensed, and 
 the jury found that she did receive more than two 
 persons who were lunatics, but that she believed 
 honestly and on reasonable grounds that they were 
 not lunatics, Mr. Justice Stephen held this to be 
 immaterial, having regard to the scope and objects 
 of the Act, and his ruling was upheld (/). Another 
 important case to the same effect is where a man 
 was convicted under 24 & 25 Vict. c. 100, s. 55, of 
 taking an unmarried girl under the age of sixteen 
 
 (o) Foster's Discourses on the Crown Law, 3rd ed. 1792, App. 
 p. 439. And see 2 East, P. C. 756. See also per Lord Kenyon in 
 /^ex V. Banks, i Esp. 144, and Coltman, J., in Reg. v. Wiluiot, 3 Cox, 
 C. C. 281, similar cases founded upon the same statute. 
 
 (J>) Reg. V. Bishop, 5 Q. B. D. 259.
 
 STATUTORY PRESUMPTIONS. I35 
 
 years out of the possession and against the will of" 
 her father. The evidence showed that the grirl had 
 gone to the prisoner willingly, and told him that she 
 was eighteen, and the jury found that he believed 
 her statement, and that the belief was reasonable. 
 The case was argued before all the judges, who by 
 a majority of fifteen to one upheld the conviction, 
 basing their decision partly upon the history and 
 scope of the Act, and partly upon the ground that 
 even if the girl had been eighteen, the man had 
 done a thing which was wrong in itself The judges 
 fully recognize the doctrine of mens rea, which formed 
 the basis of a lengthy dissentient judgment from the 
 late Lord Esher (^). 
 
 In 18S9 this question was again very fully debated 
 over a case of bigamy. The defendant married 
 Tolson in i8So, and was deserted by him in 1881. 
 She and her father made inquiries about him, and 
 learned from his brother and from general report 
 that he had been lost in a vessel bound for America, 
 which went down with all hands on board. Six 
 years after his disappearance she married another 
 man, who knew all these circumstances. Tolson 
 afterwards returned. The woman was indicted for 
 bigamy under section 57 of the same Act (be It 
 noted) upon which the indictment in the last case 
 was framed, and was convicted, the jury stating, in 
 answer to a question put by Mr. Justice Stephen 
 for the purpose of raising the point, that they thought 
 that she in good faith and on reasonable grounds 
 believed her husband to be dead at the time of the 
 
 {g) Reg. V. Prince, L. R. 2 C. C. R. 154.
 
 136 INCULPATORY MORAL INDICATIONS. 
 
 second marriage. The Court for Crown Cases 
 Reserved, consisting ( f fourteen judges, was divided 
 in oi)inion, the majority of nine holding that the 
 bona fide behef in the death of the husband was a 
 good defence in spite of the clear words of the statute, 
 the reasoning being that the presumption of guilt 
 raised by a statutory prohibition cannot be decided 
 without reference to surrcunding circumstLinces(r). 
 
 Upon an indictment under the statute 5 & 6 Wm. 
 IV. c. 19, which makes it a misdemeanour in the 
 master of a vessel to leave a seaman behind, and 
 enacts that the only defence which he can set up is 
 the production of the certificate of the consul or 
 other party meniioned in the statute, it was held 
 nevertheless that a defendant might show that it 
 was impracticable to obtain such certificate (^), and 
 this qualification has been introduced into subsequent 
 statutes, 7 & 8 Vict. c. 112, s. 48; 17 & 18 Vict, 
 c. 104, s. 208 ; and the Merchant Shipping Act, 1894 
 (57 & 58 Vict. c. 60, s. 188), which is the present 
 code on this subject (/). 
 
 (r) Reg. V. Tolsott, 23 Q. B. D. i68. 
 
 {s) Reg. V. Dtmnett, i C. & K. 425. 
 
 (/) It is impossible in a work of this kind to discuss all the recent 
 cases which deal with the doctrine of fnens rea in relati' n to statutory 
 offences. At common law it was no defence to an indictment for a 
 public nuisance [e.g. obstructing the highway) that the defendant did 
 not know of it, or that his servants committed it contrary to his express 
 orders. This was the one exception where the civil doctrine of 
 respondeat superior was applied criminally. (Cf. Reg. v. Stephens, 
 L. R. I Q. B. 702.) This is perhaps the clue to the kind of offences 
 under modern statutes to which an innocent mind is no defence. 
 Many acts which are not criminal in any real sense of the word are 
 made punishable, in the public interest as quasi-public nuisances, 
 upon summary conviction (cf. Coppen v. Moore, No. 2, 1898,
 
 scientific testimony. i57 
 
 Section 9. 
 
 SCIKNTIFIC testimony. 
 
 The testimony of skilled or scientific witnesses con- 
 stitutes a very important source of circumstantial 
 evidence, especially in reg^ard to the proof of 
 the corpus delicti in cases of suspected homicide, 
 and in inquiries whether a person is cioli capax. 
 Such evidence in its details belono^s to other depart- 
 ments of science; but as the principles which g-overn 
 its reception and application fall exclusively within the 
 province of jurisprudence, some general observations 
 upon it are necessary. 
 
 If it be true that proof is nothing more than a 
 presumption of the highest order (?/), a fortiori is 
 such the case with respect to the testimony of skilled 
 or scientific witnesses, which not unfrequently pre- 
 sents a sequence of presumptions grounded upon 
 conflicting opinions, even with regard to the actual 
 state of science. Such testimony is therefore, in its 
 very nature, siii generis^ and, according to the attain- 
 ments, means of knowledge, and character of the 
 
 2 Q. B. 306), and, following out the analogy of an indictment for 
 nuisance, there are cases where the proceedings are criminal in form, 
 but are really only a summary mode of enforcing a civil right. (Cf. 
 per Wright, J., in SJicrras v. De Riitzen^ 1895, i Q. B., at p. 922.) The 
 absence of mois rca has been held to be no defence under the Sale of 
 Food and Drugs Act ; see Betts v. Armstead, 20 Q. B. D. 771 ; Pai?i 
 V. Boiightwood, 24 Q. B. D. 353 : while it was a defence under the 
 Licensing Acts in Sherras v. De Ruizcn (sitprd), and Somerset v. 
 Wade, 1894, I Q. B. 574, and under the Contagious Diseases 
 (Animals) Act in Nichols v. Hall, L. R., 8 C. P. 322. See also other 
 cases cited in these references. Cf. pp. 28 and 131, supra. 
 («) See p. 41, supra.
 
 138 INCULPATORY MORAL INDICATIONS. 
 
 witness, may be of little moment, or deserving of 
 entire and undoubting confidence. 
 
 Science, moreover, is never final, and new facts 
 are every day found to disturb or modily long- 
 established convictions. Thus Reinsch's test, which 
 liad long been confidently employed for the sepa- 
 ration of arsenic, was, in an important case in the 
 year 1859, discovered to be fallacious without pre- 
 cautions which had not been usual, and it was shown 
 that arsenic found in the particular mixture which 
 was there in question had been set free from the 
 copper employed in the experiment (.r). 
 
 In many countries, this kind of testimony, techni- 
 cally termed expertise, is invested with a sort of 
 semi-official authority, and special rules are laid 
 down for the estimation of its proving force {y). 
 By the law of England, however, no peculiar 
 authority is given to the testimony of witnesses 
 of this description ; its value is estimated by the 
 same general principles as are applied in estimating 
 the capacity, credit, and weight of all other wit- 
 nesses {z)y and the Courts have wisely repelled all 
 attempts to depart from the established and ordinary 
 rules of evidence and judgment. On a trial for 
 murder, before Lord Chief Justice Tindal, several 
 medical witnesses, who had been present during the 
 
 [x) Reg. V. Smcf/uirst, C. C. C. Aug. 1859, Sess. Papers. The prisoner 
 was convicted, but was subsequently granted a free pardon, presumably 
 on the ground that llie medical and chemical evidence was not satisfac- 
 tory. See Taylor's Medical Jurisprudence, 4th ed. 1894, vol. i. p. 199. 
 
 {)') Traite dela Preuve, par Mittermaier, c. 26. 
 
 {g) See Best on Evidence 8th ed. 1893, pp. 465-471.
 
 SCIENTIFIC TESTIMONY. 139 
 
 trial and heard the whole of the evidence, but had 
 no other means of forming an opinion on the 
 question, were admitted to testify that in their 
 judgment the prisoner was insane. But the pro- 
 priety of admitting such evidence having been 
 made the subject of discussion in the House of 
 Lords, the question was submitted to the judges, 
 who were of opinion that a medical witness could 
 not in strictness be asked his opinion as to the 
 state of the prisoner's mind at the time of the 
 commission of the alleged crime, or whether he 
 was conscious at the time of doing the act that 
 he was acting contrary to law, or whether he was 
 labouring under any and what delusions, because 
 each of those questions involves the determination 
 of the truth of the facts deposed to, which it is for 
 the jury to decide, and the questions are not mere 
 questions upon a matter of science — as to which 
 such evidence is admissible — but that where the 
 facts are admitted, or not disputed, and the ques- 
 tion becomes substantially one of science only, it 
 may be convenient to allow the question to be put 
 in that general form, though the same cannot be 
 insisted on as matter of right (a). 
 
 On a subsequent occasion, Mr. Baron Alderson, 
 v/ith the concurrence of Mr. Justice Cresswell, 
 refused to allow a witness to be asked whether, 
 from all the evidence he had heard, both for 
 the prosecution and defence, he was of opinion 
 that the prisoner at the time he committed the 
 
 {a) Res;: v. ArNaghicn, 10 CI. & F. 200-21 1 ; i C. & K. 130, note {a) ; 
 8 Scott, N. R.59S.
 
 140 INCULPATORY MORAL INDICATIONS. 
 
 act was of iinsoiiiul mind, and said that the proper 
 mode is to ask w hat are the symptoms of insanity, 
 or to take jjarticiilar facts, and, assuming them to 
 be true, to ask whether they indicate insanity on the 
 part ot the prisoner ; but to take the course 
 suggested, he said, was really to substitute the 
 witness for the jury, and allow him to decide 
 upon the whole case ; that the jury must have the 
 facts before them, and that they alone must inter- 
 pret them by the general opinions of scientific 
 men {d). Upon a trial for murder, where the death 
 was alleged to have been caused by suffocation, 
 a physician who had attended in court and heard 
 the evidence, was asked his opinion as to the cause 
 of death ; but Mr. Justice Patteson expressed him- 
 self very strongly upon the unsatisfactory nature of 
 such evidence, the witness not having seen the body, 
 and his opinion being founded on the facts stated by 
 other witnesses {c). These cases have been followed 
 by a series of determinations in which such evidence 
 has been held to be inadmissible {d). 
 
 The reasonable principle appears to be, that 
 scientific witnesses shall be permitted to testify only 
 to such matters of fact as have come within their 
 own cognizance, or as they have acquired a know- 
 ledge of by their reading, and to such inferences 
 from them, or from other facts provisionally assumed 
 
 (J?) Reg. V. Fiances., 5 Cox, C. C. 57. 
 
 (t) Reg.\, Ne-wion^ Shrewsbury Spring Assizes, 1850, see pp. 148-154, 
 infra. 
 
 {d) Reg. V. Pate, C. C. C. 12 July, 1850 ; Doe d. Bainbridge v. Bain- 
 h uige, 4 Cox, C. C. 454 ; Reg. v. Layion, ib. 149 ; Sills v. Broix n, 9 C. 
 &P.601.
 
 SCIENTIFIC TESTIMONY. I4I 
 
 to be proved, as their particular studies and pursuits 
 specially qualify them to draw ; so that the jury 
 may thus be furnished with the necessary scientific 
 criteria for testing the accuracy of their conclusions, 
 and enabled to form their own independent judgment 
 by the application of those criteria to the facts 
 established in evidence before them. 
 
 But where the witnesses are men of unquestionable 
 character and ability, it can hardly be material 
 whether the question is asked in a more or less direct 
 form ; especially as there can be no difficulty in so 
 shaping the question as to mask, while it substantially 
 involves, the precise objection ; and in several 
 subsequent cases medical witnesses have been 
 permitted without objection to give their opinions as 
 to the sanity of parties charged with crime, as 
 grounded upon the evidence that had been adduced 
 both for the prosecution and the defence. Such 
 evidence is however technically irregular, and an 
 objection to it must, if made, prevail {e). In other 
 medical cases, as for instance where there is a charge 
 of negligence against a medical man or in any case 
 involving scientific opinion, the proper way to elicit 
 the witness's evidence is to put a hypothetical case 
 to him assuminor a state of facts identical with those 
 admitted or proved before the Court, and to ask his 
 opinion on those facts. Such a course is free from 
 objection, and an answer so obtained is more 
 satisfactory than an opinion grounded upon what 
 the witness may have heard, the value of which 
 
 (<?) Reg. V. BaraneUi, C. C. C. Ap. 1855 ; Reg. v. Wcstron, C. C. C 
 Feb. 1856 ; Starkie's L. of Ev., 4th ed. 175, note (/).
 
 142 INCULPATORY MORAL INDICATIONS. 
 
 entirely depends upon how much he heard or took 
 in(/). 
 
 It is scarcely necessary to add, that scientific 
 evidence, being generally matter of opinion, can 
 seldom be implicitly adopted. Lord Cottenham 
 said, he had seen enough of professional opinions to 
 be aware that in matters of doubt, upon which the 
 best constructed and best informed minds may differ, 
 there is no difficulty in procuring opinions on either 
 side {£). • 
 
 A learned writer on the Law of Scotland observes, 
 that " there is perhaps no kind of testimony more 
 subject to bias in favour of the adducer than that of 
 skilled witnesses ; for many men, who would not 
 willingly misstate a simple fact, can accommodate 
 their opinions to the wishes of their employers, and 
 the connection between them tends to warp the 
 judgment of the witnesses without their being 
 conscious of it ; and hence skilled witnesses, in 
 questions of handwriting, can usually be got in equal 
 numbers on either side ; and engineers are more 
 frequently like counsel for their employers than like 
 witnesses giving their real opin ons on oa.th." [/i). 
 Nor is it possible, after the discreditable exhibitions 
 which have occasionally taken place in our Courts of 
 justice, to restrict the foregoing reproaches to 
 
 (/) Fc7iivick V. Bell, I C. & K. 312 ; Malton v. Nisbet, i C. & P. 72 ; 
 Rex V. Wright, R. & R. 456. 
 
 {£) In re Dyce Sombre, i Mac. & G. at p. 128. 
 
 (//) 2 Dickson's Law of Evidence in Scotland, § 1999, p. 996 ; and 
 see the language of Lord Campbell in The Tracy Peerage, 10 C. & F, 
 191.
 
 SCIENTIFIC TESTIMONY. I43 
 
 witnesses taken from the particular professions which 
 have been enumerated. Happily, however, such 
 cases are but exceptional ; and true scientific know- 
 ledj^e, under the government of high principle, is of 
 the greatest value, as subsidiary to the ends of 
 justice (z). 
 
 Some valuable remarks upon this kind of evidence 
 were made by Lord Chief Justice Cockburn, upon a 
 trial for murder, at Taunton Spring Assizes, 1857. 
 The murder was effected by cutting the throat. A 
 knife was found on the person of tlie prisoner, with 
 stains of blood upon it ; and it was contended that 
 the murder had been effected with this weapon, while 
 it was alleged on the part of the prisoner that it had 
 been used for cutting raw beef. A professional 
 analyst called on the part of the prosecution stated 
 that the blood had not coagulated till it was on the 
 knife, that the knife had been immersed in living- 
 blood up to the hilt, and that it was not the blood of 
 an ox, a sheep, or a pig. His opinion was grounded 
 upon the relative sizes of the globules of blood in 
 man and other animals, that of man being stated to 
 be i-3400th of an inch, of the ox i-530oth, of the 
 sheep I -5 200th, and of the pig i -4500th, the relative 
 sizes being as 53 to 34 in the ox, 52 to 34 in the 
 sheep, and 45 to 34 in the pig. The learned judge 
 said, " The witness had said the blood on the knife 
 could not be the blood of an animal as stated by the 
 prisoner, and took upon himself to say that it was not 
 the blood of a dead animal ; that it was living blood, 
 
 (/) On the subject of scientific evidence, see inj'ra, Ch. VII. 8. 4 
 (poisoning), and ibid. s. 5 (infanticide).
 
 J44 IN'CULPATORV MORAL INDICATIONS. 
 
 and that it was human blood, and he had shown tliem 
 the mar\ellous powers of the modern microscope. 
 At the same time, admitting the great advantages 
 of science, they were coming to great niceties 
 indeed wiien they speculated upon things almost 
 beyond perception, and he would advise the 
 jury not to convict on this scientific speculation 
 alone." The case was conclusive on the general 
 evidence (/'). 
 
 The net result of scientific research would appear 
 to be roughly as follows (/) : — 
 
 There are three classes of tests for the discovery of 
 blood in spots and stains. Spectroscopic examination 
 may ascertain in a very reliable way the presence of 
 blood even in very minute quantities. If the 
 suspected matter gives the characteristic spectra 
 in each of a certain series of experiments made 
 under well-known conditions, it is certain that 
 blood is present, and some estimate can be formed 
 of the probable age of the bloodstain. 
 
 {k) Reg. V. Nation, Taylor's Medical Jurisprudence, 4th ed. 1894, 
 vol. i. pp. 560 and 600. As to the extent to which such evidence can 
 be relied upon, see ibid, at pp. 594-604. 
 
 (/) Dr. Dupre, F.R.S , has kindly revised the statements in the text 
 as to the detection of bloodstains, and the Editor is indebted to him 
 for this and the two following notes. 
 
 In the first place, whilst the solution is being prepared for examina- 
 tion, the time taken for the colouring matter to dissolve in some 
 measure indicates the age of the stain. As a rule the fresher the 
 blood the more readily does the colouring matter dissolve ; the older 
 the blood the slower the process of solution. In the second place, 
 recent bloodstains give the absorption spectrum of hsemoglobin ; blood- 
 stains which have been exposed for some time to the action of the 
 air give the absorption spectrum of methsemoglobin ; still older 
 stains that of haematin. See also an important note p. 423, infra.
 
 SCIENTIFIC TESTIMONY. I45 
 
 Chemical tests will detect the presence of blood and 
 may be relied upon if the suspected matter answers 
 throughout the series to the behaviour, under like con- 
 ditions, of blood. But with either method the mere 
 fact that some small proportion of the tests fails to 
 produce the definite and characteristic results sought 
 will not suffice to negative the presence of blood. 
 
 Microscopical examination may satisfactorily 
 establish the presence of red corpuscles which are 
 found in nothing but blood ; but much of its value 
 depends upon the freshness of the matter to be 
 examined. Whilst the microscopic identification 
 of blood corpuscles is a positive proof of the 
 presence of blood, the failure to find any is by no 
 means conclusive of its absence. Much the same 
 may be said with regard to the spectroscopic 
 examination. Practically the only tests capable of 
 proving the negative are chemical tests. If every 
 chemical test yields a negative result, no blood can be 
 present, whether the stain be new or old, provided that 
 a fair amount of material be available for examination. 
 The best negative test, however, is the identification 
 of the substance constituting the stain. Microscopic 
 examination does not interfere with the subsequent 
 application to the same matter cf chemical or 
 spectroscopic investigation, and it should therefore 
 be the first applied where the material is scanty in 
 quantity \m). All three methods should be used in 
 important investigations. 
 
 {ni) Spectroscopic analysis destroys the blood corpuscles ; micro- 
 scopic examination has no such consequence and therefore does not 
 affect subsequent examinations, spectroscopic or chemical. 
 C.E. L
 
 146 INCULPATORY MORAL INDICATIONS. 
 
 The examination of blood recently shed presents 
 fewer difficulties than that of old blood, but unless 
 the blood corpuscles have been broken down by 
 decomposition or by application of water (/;), and 
 have so lost their characteristic appearance, the mere 
 age of the bloodstain, even though considerable, 
 does not prevent the satisfactory application of 
 microscopic investigation. Upon neither spectro- 
 scopic nor chemical nor microscopic examination 
 can much reliance be placed unless it has been made 
 by a person thoroughly well versed in the use and 
 practice of the method in question. No known 
 processes have at present satisfactorily distinguished 
 between human blood and that of the other 
 mammalia (except camels), but mammalian blood 
 'can be conclusively distinguished from that of birds, 
 fishes and reptiles. 
 
 The following cases are remarkable as exempli- 
 fying the inconclusiveness of scientific evidence, 
 when uncorroborated by conclusive facts, physical or 
 moral. 
 
 A young man was tried for the murder of his 
 brother, who resided with their father, and over- 
 looked his farm. The prisoner, who lived about 
 twenty miles from his father's house, went on a 
 visit to him, and on the day after his arrival his 
 brother was found dead in the stable, not far from 
 a vicious mare, with her traces upon his arm and 
 
 («) Blood corpuscles are so extremely minute that they cannot 
 easily be destroyed by mechanical violence, whereas when placed in 
 contact with water they swell up and burst in a very short time.
 
 SCIENTIFIC TESTIMONY. I47 
 
 shoulders ; two other horses were in the stable, but 
 they had their traces on. Suspicion fell upon the 
 prisoner, who was on bad terms with his brother, and 
 the question was whether the deceased had been 
 killed with a spade, or by kicks from the mare ? 
 The spade was bloody, but it been inadvertently 
 used by a boy in cleaning the stable ; and the cause 
 of death could only be determined by the character 
 of the wounds. There were two straight cuts on 
 the left side of the head, one about five and the 
 other about two inches long, which had apparently 
 been inflicted by a blunt instrument. On the right 
 side of the head there were three irregular wounds, 
 tw^o of them about four inches in length, partaking 
 of the appearances of both lacerated and incised 
 wounds. There was also a wound on the back part 
 of the head, about two inches and a half long. 
 There was no swelling around any of the wounds, 
 the integuments adhering firmly to the bones ; and, 
 except where the wounds were inflicted, the fracture 
 of the skull was general throughout the right side, 
 and extended along the back of the head toward the 
 left side, and a small part of the temporal bone came 
 away. The deceased was found with his hat on, 
 which was bruised, but not cut, and there were no 
 wounds on any other part of the body. Two 
 surgeons expressed a positive opinion that the 
 wounds could not have been inflicted by kicks from 
 a horse, grounding that opinion principally on the 
 distinctness of the wounds, the absence of con- 
 tusion, the firm adherence of the integuments, and 
 the straight lateral direction and similarity of the 
 wounds ; whereas, as they stated, the deceased 
 
 L 2
 
 148 INCULPATORY MORAL INDICATIONS. 
 
 would have fallen from the first blow if he had been 
 standing-, and if lyin^r down, the wounds would have 
 been perpendicular ; and moreover they were of 
 opinion that the wounds could not have been 
 inflicted if the hat had been on the deceased's head 
 without cutting the hat, and that he could not have 
 put on his hat after receiving any of the wounds. 
 The learned judge, however, stated that he remem- 
 bered a trial at the Old Bailey where it had been 
 proved that a cut and a fracture had been received 
 without having cut the hat ; and evidence was 
 adduced of the infliction of a similar wound by a 
 kick without cutting the hat. The prisoner was 
 acquitted {0). 
 
 A woman who was tried for the murder of her 
 mother, had lived for nine or ten years as house- 
 keeper to an elderly gentleman, who was paralyzed 
 and helpless ; the only other inmate being another 
 female servant, who slept on a sofa in his bedroom 
 to attend upon him. The deceased occasionally 
 visited her daughter at her master's house, and 
 sometimes stopped all night, sleeping on a sofa in 
 the kitchen. She came to see her daughter about 
 eight o'clock one night in December, 184.8 ; the 
 other servant retired to bed about half-past nine, 
 leaving the prisoner and her mother in the kitchen, 
 and she afterwards heard the prisoner close the door 
 at the foot of the stairs, which was usually left open 
 that they might hear their master if he wanted 
 assistance. The prisoner usually slept upstairs. 
 
 {0) Rex V. Booth, Warwick Spring Assizes, 1808, coram Wood, B.
 
 SCIENTIFIC TESTIMONY. I49 
 
 About two o'clock in the morning the other servant 
 was aroused by the smell of fire, and a sense of 
 suffocation, and found the bedroom full of smoke; 
 upon which she ran downstairs, finding the door at 
 the bottom of the stairs still closed. As she went 
 downstairs she saw a light in the yard, and she found 
 the kitchen full of smoke, and very wet, particularly 
 near the fireplace, as also was the sofa, but there 
 was very little fire in the grate. She then unfastened 
 the front door, and ran out to fetch her master's 
 nephew, who lived near, and who hastened to the 
 house. He found the front door fastened, but was 
 admitted by the prisoner at the back door. He at 
 once hastened upstairs, and ascertained that his uncle 
 was safe, and then came down into the kitchen, 
 where he found the sofa was on fire, and threw some 
 water upon it. He then went to let the servant girl, 
 who had fetched him, in at the front door, which he 
 found bolted, and not merely latched. He then 
 again went upstairs with the servant to his uncle's 
 room, and they raised him up in bed, and saw that 
 he was all right. On returning to the kitchen, they 
 found the place was very wet ; a little fire was still 
 smouldering on the sofa, which they at once extin- 
 guished. The pillows and entire back part of the 
 sofa-cover were burnt to the breadth of a person's 
 shoulders. 
 
 The prisoner then came in from the back premises 
 in her night-dress; she was described as not drunk, 
 but not quite sober. She took a bottle of rum from 
 the cupboard, and drank from it, and after that 
 she soon became thoroughly intoxicated, and lay 
 down on the sofa. The girl then went out of the
 
 150 INCULPATORY MORAL INDICATIONS. 
 
 kitchen towards the brewhouse, and found the 
 deceased lying on her face on the steps of the 
 brewhouse, apparently burnt to death. Her arms 
 were crossed in front over her breast, or, according- 
 to one witness, across her face ; on the back of 
 the head lay a piece of the sofa-cover, and near the 
 body w^as a cotton bag which had been used in the 
 house indiscriminately as a bag or a pillow ; it was 
 besmeared with oil. Near the feet of the body were 
 the remains of four pairs of sheets which had been 
 in the kitchen the night before. They were almost 
 entirely consumed by fire ; what was left of them 
 was wet. The prisoner's clothes were on a chair in 
 the kitchen — the explanation being given that she 
 was in the habit of undressing there. Holes had 
 been burnt through them, and it was found that the 
 prisoner's hands were scorched and blistered, and 
 that she had burns on her arms and body corre- 
 sponding with the burns in her clothes. It appeared 
 from the state of the bedclothes in her room upstairs 
 that she had not been in bed, but there was a mark 
 as if someone had been lying upon the bed. A 
 butter-boat, which had been full of dripping, and a 
 pint bottle, which had been nearly full of lamp-oil, 
 and left near the fire overnight, were both empty, and 
 there were spots of grease and oil on the pillow- 
 case, sheets, and sofa. A stocking had been hung 
 up to cover a crevice in the window-shutter, through 
 which any person outside might have seen into the 
 kitchen. The door-post of the kitchen leading into 
 the yard was much burnt about three feet high from 
 the ground ; and there was a mark of burning on 
 the door-post of the brewhouse. The surface of the
 
 SCIENTIFIC TESTIMONY. 151 
 
 deceased woman's body was completely charred, the 
 tongue was livid and swollen, and one of the toes was 
 much bruised, as if it had been trodden on. There 
 was a small blister on the inner side of the right leg, 
 far below where the great burning commenced, 
 which contained straw-coloured serum, but there 
 was no other blister on any part of the body, nor 
 any marks of redness around the blister, or at the 
 parts where the injured and uninjured tissues joined. 
 The nose, which had been a very prominent organ 
 during life, was flattened down so as not to rise to 
 more than the eighth of an inch above the level of the 
 face, and as it never recovered its original appear- 
 ance, it was stated that it must have been so flattened 
 for some time before death. The lungs and brain 
 were much congested, and a quantity of black blood 
 was found in the riorht auricle of the heart. 
 
 From these facts the medical witnesses examined 
 in support of the prosecution concluded, that the 
 deceased had been first suffocated by pressing some- 
 thing over her mouth and nostrils so forcibly as to 
 break and flatten the nose in the way described ; 
 but they had made no examination of the larynx 
 and trachea, and other parts of the body. A 
 physician who had heard the evidence but not seen 
 the deceased, gave his opinion that the appear- 
 ances described by the other witnesses were signs 
 of death by suffocation ; that the absence of vesica- 
 tion, and of the line of redness were certain signs 
 that the body had been burnt after death ; but 
 he added that, as there were no marks of external 
 injury, an examination should have been made of 
 the parts of the body above mentioned, in order
 
 152 INCULPATORY MORAL INDICATIONS. 
 
 to arrive at a satisfactory conclusion. Another 
 medical witness thouLilu it possible that suffocation 
 might have been produced by the flames preventing 
 the access of air to the lungs, while others again 
 thought it impossible that such could have been the 
 case, as no screams had been heard in the night, 
 and they were also of opinion that if alive the 
 deceased must have been in such intense agony that 
 she could not, even if she had been strong enough 
 to walk from the kitchen to the brewhouse, have 
 refrained from screamincj. One of these witnesses 
 stated that he did not think it possible that the 
 deceased, if alive, could have fallen in the position 
 in which she was found, as her first impulse would 
 have been to stretch out her arms to prevent a fall ; 
 but, on the other hand, it was urged that it was not 
 possible to judge of the acts of a person in the last 
 agonies of death by the conduct of one in full life. 
 Under the will of her grandfather the prisoner was 
 entitled on the death of her mother to the sum of 
 ^200; and to the interest of the sum of ^300 for 
 her life. She had frequently cruelly beaten the old 
 woman, threatened to shorten her days, bitterly 
 reproaching her for keeping her out of her property 
 by living so long, and declared that she should never 
 be happy so long as she was above-ground, and she 
 had once attempted to choke her by forcing a hand- 
 kerchief down her throat, but was prevented from 
 doing so by the other servant. The magistrates 
 had been frequently appealed to, but they could 
 only remonstrate, as the old woman would not 
 appear against her daughter. 
 
 The case set up on behalf of the prisoner was,
 
 SCIENTIFIC TESTIMONY. 1 53 
 
 that she was in bed and, perceiving a smell of 
 fire, came downstairs, and finding the sofa on fire, 
 fetched water and extinguished it, and that she 
 knew nothing of her mother's death until she heard 
 it from others. It appeared that the old woman 
 was generally very chilly, and in the habit of getting 
 near the fire ; that on two former occasions she had 
 burned portions of her dress ; that on another she 
 had burned the corner of the sofa-cushion ; that 
 she used to smoke in bed, and light her pipe 
 with lucifer matches, which she carried in a basket ; 
 and that on the night in question she had brought 
 her pipe, which was found on the following morning 
 in her basket. It was urged as the probable explana- 
 tion of the position in which the body was found, 
 that, finding herself on fire, she must have pro- 
 ceeded to the brewhouse, where she knew there 
 was water, and leaned in her way there against 
 the doorpost, and that, feeling cold in the night, 
 she had wrapped the sheets around her, and did not 
 throw them off until she reached the yard. The 
 prisoner, though accustomed to sleep upstairs, was 
 in the habit of undressing in the kitchen, which was 
 stated to be the reason why the stocking had been 
 so placed as to prevent any person from seeing 
 into the kitchen. 
 
 Mr. Justice Patteson, in his charge to the jury, 
 characterized the evidence of the medical practi- 
 tioners who had examined the body as extremely 
 unsatisfactory in consequence of the incompleteness 
 of their examination ; the opinion of the physician 
 who had not seen the body was also, he said, very 
 unsatisfactory as substituting him for the jury ; that
 
 154 INCULPATORY MORAL INDICATIONS. 
 
 he had only expressed his opinion as founded upon 
 the facts stated by the other witnesses ; that if he 
 had seen the body himself, his views might have been 
 materially different ; that the other witnesses might 
 have omitted to mention particulars w^hich he might 
 deem of the greatest importance, but which they 
 considered as of no significance ; that therefore 
 opinions expressed on such partial statements ought 
 to be received with the greatest reluctance and 
 suspicion ; that he had always had a strong opinion 
 against such evidence, as tending to encroach upon 
 the proper duty of juries ; and he recommended 
 them to exercise their own judgment upon the 
 other evidence in the case, without yielding it 
 implicitly to the authority of this witness. The 
 jury acquitted the prisoner ; and indeed it would 
 have been contrary to all principle to do otherwise, 
 in the midst of so much uncertainty as to the corpus 
 delicti [p). 
 
 {/>) Reg. V. Newton, Shrewsbury Spring Assizes, 1850. Two 
 former juries, at the Assizts in the preceding year, had been unable to 
 agree, and had been discharged — a circumstance unparalleled, it is 
 believed, in English jurisprudence.
 
 AMERICAN NOTES. 
 
 [Note to Chapter III.] 
 
 Motive — In General. 
 
 " When there is a question whether any act was done by any 
 person, the following facts are deemed to be relevant ; that is to 
 say — any fact which supplies a inotiv^e for such an act, or which 
 constitutes preparation for it ; any subsequent conduct of such 
 person apparently influenced by the doing of the act, and any act 
 done in consequence of it by or by the authority of that person." 
 Stephen's Dig. Evid. Art. 7. 
 
 Motive may be shown (<?. g., by proof of criminal relations 
 between the victim and the wife of the accused). Martin v. 
 State, 9 Circ. Dec. 621, 17 Ohio Circ. Ct. 406. 
 
 Motive cannot generally be shown directly. It is to be inferred 
 from facts proved. John v. Bridgman, 27 Ohio St. 43. 
 
 It may however be testified to directly by the person who did 
 the act. Coal Co. v. Davenport, 37 Ohio St. 194; Mitchell z/. 
 Ryan, 3 Ohio St. 377, 385. 
 
 To show a person's motives, his own prior declarations are 
 admissible, there being at the time they were made no object 
 apparent in falsifying. McCracken v. West, 17 Ohio, 16. 
 
 Facts supplying a motive may be shown in connection with 
 other evidence. State v. Palmer, 65 N. H. 216; Dodge v. 
 Carroll, 59 N. H. 237 ; State v. Watkins, 9 Conn. 52, 54; Com. 
 V. McCarthy, 119 Mass. 354; Com. v. Bradford, 126 Mass. 42; 
 Com. V. Abbott, 130 Mass. 472 ; Com. v. Choate, 105 Mass. 451 ; 
 Com. V. Hudson, 97 Mass. 565 ; Com. v. Vaughan, 9 Cush. 
 (Mass.) 594; Scott V. People, 141 111. 195; Benson v. State, 119 
 Ind. 488; Tucker v. Tucker, 74 Miss. 93, 32 L. R. A. 623; 
 State V. Glahn, 97 Mo. 679; Moore v. U. S., 150 U. S. 57; 
 Alexander v. U. S., 138 U. S. 353.
 
 154^ AMERICAN NOTES. 
 
 That the victim had been pressing the accused for payment of a 
 debt is relevant, as showing motive, in a trial for murder. Com. ?-. 
 Webster, 5 Ciish. (Mass.) 295. 
 
 The fact of excessive insurance may be shown at the trial of 
 the owner of a house, who is charged with unlawfully burning it, 
 as it tends to supply a motive. Com. v. McCarthy, 119 Mass. 
 354; State V. Cohn, 9 Nev. 179. 
 
 Evidence of motive must not be too remote. Com. v. Abbott, 
 130 Mass. 472. 
 
 Defendant's motive for shooting deceased may be shown to 
 have arisen from a woman's remark that he ouglit to whip the 
 deceased. People v. Gallagher, 78 N. Y. Supp. 5. 
 
 The admission by defendant that one adequate motive exists 
 does not prevent proof of another by the State. Com. v. Spink, 
 137 Pa. St. 255. 
 
 In Butler v. State (Ark.), 63 S. W. 46, a father's motive for 
 murdering his daughter was shown to be that he feared she would 
 join the Mormon church as her mother had done. 
 
 Motive of Third Persoti to Prociu'c Muj-der. 
 
 The motive for homicide may be shown to be the hatred of a 
 third person for the deceased, and that the defendant was procured 
 by such third person to do the act. Story v. State, 68 Miss. 609. 
 
 Probative Value of Motive. 
 
 The value of a motive to do an act, as a circumstance from 
 which to infer guilt, is much less where it is one which would be 
 likely to appeal to a large number of persons. The fact that the 
 defendant, charged with larceny, desired to become rich, is of 
 little weight to prove his guilt. Millions have the same desire. The 
 same principle applies in trials for rape and similar cases. Com. 
 V. Hudson, 97 Mass. 565. 
 
 Motive not Admissible jintil Defendant is Shown to Have 
 Known Fact. 
 
 The fact that the deceased was prosecuting the defendant for 
 blackmail cannot be proved as a motive for killing the deceased, 
 unless it is shown that the defendant knew of such prosecution. 
 Stokes v. People, 53 N. Y. 164, 13 Am. Rep. 492.
 
 AMERICAN NOTES. 
 
 154^ 
 
 The circumstance which is alleged to have been the cause of the 
 defendant's desire to commit the crime charged must be shown to 
 have been known by him, otherwise it could not have been his 
 motive. State v. Shelton, 64 Iowa, 2)ZZ j Son v. Terr., 5 Okl. 526. 
 
 Lapse 0/ Time as Affecting Motives. 
 
 The commission of other crimes, and the fear of their discovery 
 by the deceased, may be proved as a motive to murder. " Nor 
 can we sanction the views of the learned counsel that these col- 
 lateral crimes were too remote in time to furnish any motive for 
 the conmiission of the crime here charged. Motive may or may 
 not be affected by the lapse of time. Ordinarily, a man who had 
 committed a murder twenty years in the past would be just as 
 much concerned to prevent exposure and punishment for that 
 crime as though it were but one year in the past. And in this 
 case, if the discovery by Mrs. Kent, at the time of her death, of 
 these dark and criminal spots in her husband's life, would have 
 been just as galling and humiliating to him as if discovered the 
 first year of their married life, then his motive to prevent such 
 discovery would be just as strong at the former time as at the 
 latter." State v. Kent, 5 N. D. 516 (wife murder). 
 
 JVeeessitv of Proving Motive. 
 
 " Appellant further urges that the evidence fails to disclose any 
 motive for the crime ; that proof of motive is essential to support 
 conviction, and that therefore the judgment must be reversed. If 
 by this is meant that proof of a particular motive must be as clear 
 and cogent as proof of the crime, the proposition finds no support 
 in either reason or authority. To the act of every rational human 
 being pre-exists a motive. In every criminal case, proof of the 
 moving cause is permissible, and oftentimes is valuable ; but it is 
 never essential. Where the perpetration of a crime has been 
 brought home to the defendant, the motive for its commission be- 
 comes unimportant. Evidence of motive is sometimes of assistance 
 in removing doubt, and completing proof which might otherwise be 
 unsatisfactory, and that motive may either be shown by positive evi- 
 dence, or gleaned from the facts and surroundings of the act. The 
 motive then becomes a circumstance, but nothing more than a cir- 
 cumstance, to be considered by the jury, and its absence is equally
 
 154^ AMERICAN NOTES. 
 
 a circumstance in favor of the accused, to be given such weight 
 as it deems proper. But proof of motive is never indispensable 
 to a conviction." People 7^ Durrant, ii6 Cal. 179, 207. 
 
 Proof of a motive is always admissible, but may not be necessary 
 to establish the guilt of the accused. Prentice, J., in State v. 
 Rathbun, 74 Conn. 524, says: "The State was under no obliga- 
 tion to show a motive for the commission by the accused of the 
 crime charged, much less a sufficient or adequate one. While it 
 is a recognized rule of human conduct that crime is the response 
 of the evil mind to some temptation, and that men of sound mind 
 are rarely, if ever, prompted to commit crime without some impel- 
 ling motive, it does not follow, and it is not the law, that the 
 prosecution, to justify a conviction in a given case, must be so 
 successful in fathoming the mysteries of the human mind and in 
 revealing the possibly hidden secrets influencing it as to develop 
 and disclose to the jury a motive sufficient and adequate for the 
 commission of the offence. . . . The other evidence may be such 
 as to justify a conviction without any motive being shown. It may 
 be so weak that, without a disclosed motive, the guilt of the 
 accused would be clouded by a reasonable doubt." 
 
 Motive need not be proved in order to sustain a conviction for 
 murder. People v. Owens, 132 Cal. 469. 
 
 Failure to Prove Motive. 
 
 The fact that the State has failed to prove a motive should not 
 be given weight by the jury. Brunson v. State (Ala.), 27 So. 410. 
 
 The State has no need to prove a motive where the evidence of 
 defendant's guilt is conclusive ^vithout it. People v. Minisci, 12 
 N. Y. St. R. 719 ; Thurman v. State, 32 Neb. 224. 
 
 Proof of a motive is never indispensable. People v. Robinson 
 (N. Y.), I Parker Cr. R. 649. 
 
 Absence of Motive. 
 The absence of a motive raises no presumption of innocence, 
 but is merely one circumstance to be weighed by the jury. Salm 
 V. State, 89 Ala. 56. 
 
 Desire for Wealth. 
 
 The motive for committing a larceny is usually a desire for 
 wealth quickly and easily obtained ; so also is it in burglary and 
 robbery, and often in arson, homicide, and other crimes.
 
 AMERICAN NOTES. 154^ 
 
 Financial Necessity of the Accused. 
 
 The state of the defendant's bank account and his need of 
 money may be shown on his trial for kilhng his mother. Com. v. 
 Twitchell, i Brevvst. (Pa.) 551. 
 
 On question of forgery of a bill, evidence that at about the time 
 the bill is dated the signer tried to borrow money, is relevant. 
 Stevenson v. Steward, 1 1 Pa. 307. 
 
 The defendant accused of setting fire to a building may be shown 
 to have insured the building antl to have been insolvent. People 
 V. Fitzgerald, 46 N. Y. Supp. 1020. 
 
 Where the State alleged that the deceased was killed to prevent 
 the exposure of the defendants as guilty of larceny with which he 
 had charged the deceased, it was allowed to be shown that the de- 
 fendant had been short of money. State v. Miller, 156 Mo. 76. 
 
 To Secure Life Insurance. 
 
 Evidence to show that motive for murder was to secure life in- 
 surance held admissible. Com. "'. Clemmer, 190 Pa. 202. 
 
 It may be shown that defendant had a plan to secure insur- 
 ance money payable on the death of A to his wife, by first killing 
 the wife, then inducing A to make the policies payable to the de- 
 fendant, and then killing A. Com. v. Robinson, 146 Mass. 571. 
 And see Shaffner v. Com., 72 Pa. 60, 13 Am. Rep. 649. 
 
 The deceased may be shown to have been insured in favor of 
 the defendant. State v. Rainsbarger, 74 Iowa, 196. 
 
 It may be shown that four persons had a scheme whereby two 
 were to procure insurance on the life of another and the other two 
 were then to kill that other. Brandt v. Com., 94 Pa. 290. 
 
 Motives for Arson. 
 
 Anger at his wife and her intention of getting a divorce as a 
 motive for burning the house. People v. Hiltal, 131 Cal. 577. 
 
 The securing of insurance money may be shown to have been 
 the object for which the accused burned certain buildings. Knights 
 V. State (Neb.), 78 N. W. 508. 
 
 Ill-will toward an agent of the owner of property is not admis- 
 sible as a motive for burning the property. State v. Battle, 126 
 N. C. 1036.
 
 154/ AMERICAN NOTES. 
 
 Robbery and Jlotnicide. 
 
 Where tVic alleged motive for a homicide is robbery, it may be 
 shown that the deceased had money and that the defendant knew 
 it, or that he had proi)osed to rob the deceased, iiyers v. State, 1 05 
 Ala. 31 ; Stafford -■. State, 55 Ga. 591 ; State v. Jackson, 95 Mo. 623 ; 
 Kennedy v. People, 39 N. Y. 245 ; Howser v. Com., 51 Pa. 332. 
 
 Also the deceased may be shown to have had money, when cir- 
 cumstances are proved making it probable that the defendant knew 
 the fact. Marable v. State, 89 Ga. 425. 
 
 In addition it maybe shown that the defendant had been in need 
 of money and liad said so (People v. \\'olf, 95 Mich. 625), and 
 that the defendant paid certain debts about the time of the homi- 
 cide, or had an unusual sum of money in his possession. Clough 
 V. State, 7 Neb. 320; State v. Wintzingerode, 9 Ore. 153. 
 
 The fact that the deceased had money may be shown in con- 
 nection with proof that his purse was found near where his body 
 lay. State v. Donnelly, 130 Mo. 642. 
 
 The defendant may be shown to have known where the deceased 
 kept his money. Ettinger v. Com. 98 Pa. 338. 
 
 To prove motive in trial for homicide the State may prove how 
 much money deceased had. Donnelly v. State, 26 N. J. L. 610. 
 
 Proof was made that the decea.sed's books showed that he should 
 have had $1,200 at the time of his death, while he was later found 
 to have only $400, that the defendant had been hard up, and that 
 immediately after the homicide he paid a number of his creditors. 
 State V. Rice (Ida.), 66 Pac. 87. 
 
 The State may show that the deceased was generally reputed to 
 have money, and that she distrusted banks, and that the defendant 
 knew it, as a motive for robbery and murder. Musser v. State 
 (Ind.), 61 N. E. I. 
 
 Where the motive for the homicide was the money which de- 
 ceased was going to draw from a bank, the State may show the 
 amount on deposit there. State v. Lucey (Mont.), 61 Pac. 994. 
 
 To Escape the Biirdefi of Supporting Deceased. 
 
 It may be shown that defendant had by deed agreed to support 
 the deceased during the remainder of his life. Davidson v. State, 
 135 Ind. 254.
 
 AMERICAN NOTES. 154^ 
 
 To Conceal Defalcations. 
 
 The defendant, charged with the destruction of certain books of 
 account for the purpose of concealing his defalcation, may be 
 shown to have been gambling shortly before the event. McElhan- 
 non V. State (Ga.), 26 S. E. 501. 
 
 Previous Relations dctweefi Deceased and Defendant — In 
 General. 
 
 The previous relations existing between the defendant and the 
 deceased, unfriendly feelings, anger in arguments, concealed mar- 
 riage, illicit intercourse, and the like, may be proved as bearing 
 upon the motives tending to crime. State v. Seymore, 94 Iowa, 
 699 ; Sillberryz'. State, 133 Ind. 677 ; O'Brien z'. Com., 89 Ky. 354 ; 
 State 7'. Stackhouse, 24 Kan. 445 ; Com. v. Costley, 118 Mass. i ; 
 People -'. Lyons, no N. Y. 618 ; McWeen v. Com., 114 Pa. 300 ; 
 Boyle V. State, 61 Wis. 440. 
 
 The deceased may be shown to have had the accused arrested 
 on a charge of bastardy, and that the accused had paid a sum of 
 money to settle the case. Franklin v. Com., 92 Ky. 612. 
 
 A quarrel between the defendant and the wife of the deceased 
 was admitted as a motive for homicide. Gravely v. State, 45 Neb. 
 878. 
 
 To show the motive of a slave for mixing poison with the food 
 prepared by her for her owner, her conduct, disobedient acts, and 
 discontent may be proved, as also the fact that the owner had 
 sexual intercourse with her. Josephine v. State, 39 Miss. 613. 
 
 Revenge. 
 
 Defendant's motive for killing the deceased was shown to be the 
 fact that defendant had just served a term in the penitentiary for 
 burglary of the deceased's house. Powell v. State, 13 Tex. App. 
 244. 
 
 It may be shown that the deceased had planned to help the 
 defendant's wife elope with another man, in order to show a motive 
 for homicide. Cheek v. State, 35 Ind. 492. 
 
 In State v. Morris, 84 N. C. 756, it was shown that the defend- 
 ant and the deceased had been indicted for larceny and that the 
 latter had turned State's evidence.
 
 154 -^-J AMERICAN NOTES. 
 
 To show that the dcfcmlaiU had a motive for the murder of liis 
 wife, it may be proved that she iiad sued for a divorce. Com. v. 
 Madan, 102 Mass. i ; Binns v. State, 57 Ind. 46. 
 
 Trouble witli defendant's employer as motive for arson. Meeks 
 V. State (Ga.), 30 S. E. 252. 
 
 Discharge of Employee. 
 
 It may be shown that the defendant had been in the employ of 
 the deceased and had been discharged. Morrison v. State, 84 
 Ala. 405. 
 
 Deceased a Witness in Another Case. 
 
 To prove homicide, the deceased may be shown to have been a 
 witness or the prosecutor against the defendant in another case. 
 Childs V. State, 55 Ala. 25 (prosecution for stealing corn) ; Tur- 
 ner V. State. 70 Ga. 765 (indictment for another murder) ; Butler 
 V. State, 91 Ga. 161 (prosecution for adultery with daughter of 
 deceased) ; Martin v. Com., 93 Ky. 189 (indictment for robbery) ; 
 Gillum V. State 62 Miss. 547 (illegal liquor selling) ; State v. 
 Morris, 84 N. C. 756 (deceased was State's evidence in larceny case). 
 
 It may be shown that the deceased was to be a witness against 
 the defendant in a suit for divorce on the ground of adultery. 
 Com. V. Madan, 102 Mass. i. 
 
 Neighborhood Feud. 
 
 The existence of a neighborhood feud may be shown, and the 
 fact that the defendant and the deceased belonged to different 
 sides. State v. Helm, 97 Iowa, 378. 
 
 To show a feud between the families as a motive for murder, 
 the State may show that immediately after shooting the deceased he 
 shot again and wounded deceased's mother. People v. Walters, 
 98 Cal. 138. 
 
 Previous quarrels in which the deceased killed a relative and a 
 friend of the defendant may be proved to show defendant's motive 
 for kiUing deceased. Kelsoe v. State, 47 Ala. 573. 
 
 Jealousy. 
 
 The defendant in homicide may be shown to have been rejected 
 and the deceased to have been accepted by the same girl (Hunter
 
 AMERICAN NOTES. I 54/ 
 
 V. State, 43 Ga. 483 ; McCue v. Com., 78 Pa. 185 ; 21 Am Rep. 7), 
 or the defendant may be shown to have been jealous of the 
 deceased and to have quarrelled with a woman about him. Com. 
 V. McManus, 143 Pa. 64, 14 L. R. A. 89. 
 
 Unrequited Love. 
 
 It may be shown that the defendant killed the deceased because 
 she refused to cohabit with him or to marry him (Walker v. State, 
 85 Ala. 7, 7 Am. St. Rep. 17 ; People v. Kemmler, 1 19 N. Y. 580), 
 or because the deceased had interposed obstacles to the marriage 
 of the defendant with some woman. State v. Lentz, 45 Minn. 177. 
 
 It may be shown that the deceased had supplanted the defend- 
 ant in the affections of a lewd woman. Brown t. Com. (Ky.), 17 
 S. \V. 220. 
 
 In Renfro r. State (Tex.), 56 S. W. 1013, the motive was shown 
 to be that the defendant had been rejected by the daughter of the 
 deceased, to whom he had then imputed unchastity ; that defendant 
 had been sued for slander, in which suit deceased was a witness; 
 and that defendant had threatened to kill the deceased for prose- 
 cuting the suit. 
 
 Dispute over Will. 
 
 Where the defendant is charged with the murder of his brother, 
 it may be shown that their father's will gave all his property to the 
 deceased and that the defendant had contested the will. State v. 
 Ingram, 23 Ore. 434. 
 
 Race Antipathies. 
 
 Where the defendant is charged with killing a Mexican, he may 
 be shown to have attended a meeting the object of which was to 
 rid the neighborhood of cheap Mexican labor. Chalk v. State, 
 35 Tex. Cr. Rep. 116. 
 
 Membership in Criminal Organization. 
 
 To show that the defendants committed the murder as agents of 
 the " Mollie Maguires," the State may show that such an organiza- 
 tion existed with its criminal purposes and practices. Carroll v. 
 Com., 84 Pa. St. 107 ; Hester v. Com., 85 Pa. St .139 ; McManus v. 
 Com., 91 Pa. St. 57.
 
 1547 AMERICAN NOTES. 
 
 Improper Relations with the Wife of the Deceased. 
 
 That illicit sexual intercourse may be a motive for homicide, 
 and may be proved in evidence, see Com. v. Ferrigan, 44 Pa. St. 
 3S6, where it is said : " He is a poor judge of human motives and 
 impulses who cannot see in such a relation as is proposed to be 
 proved here between the deceased's wife and the prisoner, that it 
 might leail to the perpetration of the crime charged, or who would 
 deny that it would probably shed light on the motive." 
 
 Defendant, charged with homicide, may be shown to have had 
 improper relations with tiie wife of the deceased (Johnson z'. 
 State, 24 Fla. 162 ; State v. Reed, 53 Kan. 767, 42 Am. St. Rep. 
 322 ; Templeton v. People, 27 Mich, 501 ; Turner v. Com., 86 
 Pa. St. 54; Com. V. Fry, 198 Pa. St. 379; Onidas v. State, 
 78 Miss. 622 ; State v. Chase, 68 Vt. 405 ; Weaver z'. State (Tex.), 
 65 S. W. 534), after the murder as well as before it. Miller v. 
 Stale, 68 Miss. 221 ; Traverse v. State, 6r Wis. 144. 
 
 To show motive for murder the State may prove that the de- 
 fendant and the wife of the deceased occupied the same room for 
 two nights shortly after the murder. State v. Abbotts, 64 N. J. L. 
 658. 
 
 In Nicholas 7'. Com., 91 Va. 741, the defendant was shown to 
 have been criminally intimate with the wife of the man he was 
 alleged to have drowned, both before and after the latter's death. 
 
 The defendant may be shown to have married the wife of the 
 deceased after the homicide, even though such marriage was biga- 
 mous. Pierson v. People, 79 N. Y. 424, 35 Am. Rep. 524. 
 
 The defendant may be shown to have been criminally intimate 
 with the deceased's wife to show motive and the degree of the 
 crime. State v. Reed, 53 Kan. 767, 42 Am. St. Rep. 322. 
 
 To show defendant's relation with the wife of deceased the wife's 
 letters are admissible to show her affection for defendant and 
 her lack of affection for her husband. Stokes v. State (Ark.), 71 
 S. W. 248. 
 
 Wife Afurder — Various Motives. 
 
 Where the charge is wife murder, the defendant may be shown 
 to have previously beaten and abused his wife. Phillips v. State, 
 62 Ark. 119 ; Hall z'. State, 31 Tex. Cr. Rep. 565 ; Stone v. State,
 
 AMERICAN NOTES. 154/^ 
 
 23 Tenn. 27 ; Thiede v. People, 159 U. S. 510; Slate v. O'Neil, 
 51 Kan. 651, 24 L. R. A. 555. 
 
 In Com. V. Holmes, 157 Mass. 233, 34 Am. .St. Rep. 270, where 
 the defendant was charged with wife murder, evidence was ad- 
 mitted to show that he had beaten and threatened her during 
 almost their whole married life. 
 
 The defendant charged with the murder of his wife may be shown 
 ♦o have been married before, and that the former wife was living 
 and not divorced. People v. Harris, 136 N. Y. 423. 
 
 Where the defendant is charged with wife murder it may be 
 shown that she had made a will leaving her property to the de- 
 fendant. People V. Buchanan, 145 N. Y. i. 
 
 The State may show that the deceased had applied for a divorce 
 from the defendant, but it is not proper to read the divorce petition 
 to the jury. Pinckord v. State, 13 Tex. App. 468. 
 
 Where it is alleged the defendant killed his wife because she 
 refused to live with him, his motive for desiring her to live with 
 him may be shown to be the fact that she had money and he had 
 none. Sayres v. Com., 88 Pa. St. 291. 
 
 The defendant charged with wife murder may be shown to have 
 been disappointed in the will of his wife's father. Hendrickson v. 
 People, 10 N. Y. 13, 61 Am. Dec. 721. 
 
 The wife may be shown to have refused to live with her husband 
 because of violence or for other reasons. State v. Bradley, 67 Vt. 
 
 465- 
 
 It may be shown that the wife had previously had her husband 
 arrested for assaults or for non-support. People v. Otto, 4 N. Y. 
 Cr. Rep. 149, 5 N. E. 788 ; McCann v. People, 3 Parker Cr. 
 Rep. (N. Y.) 272. 
 
 Concealmettt of Marriage. 
 
 To show a motive for the defendant's killing his wife, the State 
 may show that he had previously procured abortions on her for 
 keeping the marriage a secret. People v. Harris, 136 N. Y. 423. 
 
 In O'Brien v. Com., 89 Ky. 354, where the supposed motive 
 for the murder of a wife to whom the prisoner had been secretly 
 married was the fact that the announcement of such marriage, 
 which could be delayed but a short time longer, would interrupt 
 his relations with a prostitute and prevent marriage with another 
 woman living in Indiana, to whom he was then under engagement
 
 I 54 / AMERICAN NOTES. 
 
 of marriage, letters of the prisoner to the deceased and such other 
 women were held competent. " All of them . . . showed the ex- 
 istence of a relation between the accused and these two women 
 which might be broken off or interfered with by his marriage to the 
 deceased becoming public. They exhibited a motive why he 
 should desire to rid himself of his wife and their unborn offspring." 
 
 Desire for Another Woman. 
 
 It may be shown that the defendant desired to ma-rry another 
 woman and had said so (Marler v. State, 67 Ala. 55, 42 Am. Rep. 
 95 ; O'Brien v. Com., 89 Ky. 354), or that he loved another woman 
 and no longer cared for his wife. Duncan v. State, 99 Ala. 31 ; 
 Pettit V. State, 135 Ind. 393; People v. Wilson, 109 N. Y. 345. 
 
 Where the defendant was charged with wrecking a train upon 
 which his wife was travelling, his proposals to another woman were 
 allowed to be proved. Shaw v. State, 102 Ga. 660. 
 
 Infatuation with another woman may be shown as a motive for 
 wife murder. Caddell v. State (Ala.), 30 So. 76. 
 
 Adulterous Relations with Other Women. 
 
 Adulterous relations of a husband charged with the murder of 
 his wife may be proved. " Love extinguished by adultery gives way 
 to hatred, and a desire to be free from the burden of a wife who 
 is no longer the object of regard." State v. Watkins, 9 Conn. 
 47; so also Hinshaw j-\ State, 147 Ind. 334; St. Louis v. State, 
 8 Neb. 405 ; State v. Duestrow, 137 Mo. 44; Templeton v. People, 
 27 Mich. 502; People v. Harris, 136 N. Y. 423; Johnson v. 
 State, 94 Ala. 35. 
 
 The defendant charged with poisoning his wife may be shown to 
 have been improperly intimate with another woman prior to his wife's 
 death and on the day of her burial. State v. Hinkle, 6 Iowa, 380. 
 
 Defendant's motive for procuring another to murder his wife 
 was shown that he was in love with another woman with whom he 
 had had intercourse, and that he and his wife had frequent alter- 
 cations over the other woman. Givens v. State, 103 Tenn. 648. 
 
 And so where a wife is charged with being accessory to the 
 murder of her husband, her letters may be introduced to show her 
 improper relations with the man who did the killing (Stricklin v. 
 Com., 83 Ky. 566); or where she is herself charged with the mur-
 
 AMERICAN NOTES. I54 7« 
 
 der, her improper relations with a man not her husband may be 
 proved. People v. Nileman, 8 N. Y. St. Rej). 300 ; Mack v. State, 
 48 Wis. 271. 
 
 Other Crimes to Show Motive. 
 
 To show that the motive for the murder of a child by her father 
 was his desire to marry a second wife, it may be shown that he 
 killed his wife and another child also. The Court says : " The 
 theory of the prosecution in this case, as developed on the trial, 
 was, that the defendant conceived that the lives of Emma Hawes, 
 his wife, and of their children, May and Irene, stood between him 
 and the consummation of a second marriage ; and hence that the 
 motive which prompted the murder of each of them was the same. 
 There was evidence tending strongly to support this theory, and to 
 show that the death of each of the victims was but a part of a 
 system in which the lives of all were involved, and in the working out 
 of which to the accomplishment of defendant's ulterior purpose, 
 the life of each was, in substantially the same manner, ruthlessly 
 sacrificed. Under these circumstances, all evidence going in any 
 way to connect the defendant with the murder of his wife, or of 
 his daughter Irene, was relevant to the issues involved on his trial 
 for the murder of May, and was properly admitted." Hawes v. 
 State, 88 Ala. 37, 67. 
 
 Proof of a motive is admissible, though it makes necessary the 
 proving of other crimes. Terr. v. McGinnis (New Mex.), 61 
 Pac. 208. 
 
 But it is not proper to prove that the defendant committed the 
 crime in question by evidence that he had a different motive to 
 commit another crime. 
 
 In Shaffner v. Com., 72 Pa. St. 60, the Court says : ''To make 
 one criminal act evidence of another, a connection between them 
 must have existed in the mind of the actor, linking them together 
 for some purpose he intended to accomplish ; or it must be neces- 
 sary to identify the person of the actor by a connection which 
 shows that he who committed the one must have done the other." 
 
 To show that the defendant poisoned a certain horse he may be 
 shown to have poisoned others in pursuance to a scheme to induce 
 people to employ him as a veterinary. Brown v. State, 26 Ohio 
 St. 176. 
 
 The defendant, on trial for poisoning his wife, may be shown to
 
 154'^ AMERICAN NOTES. 
 
 hnve first poisoned his mother-in-law, from whom the wife would 
 inherit property. Goersen v. Com., 99 Pa. 388, 106 Pa. St. 477, 
 51 Am. Rep. 534. 
 
 Concealment of Another Crime. 
 
 The State may show that the defendant had committed another 
 murder and knew he was suspected of it by the deceased, and 
 this, even if there is proof of other motives. Moore v. U. S., 150 
 U. S. 57; Dunn v. State, 2 Ark. 229, 35 Am. Dec. 54. 
 
 A murder may be shown to have been committed to conceal 
 stolen goods obtained by burglary. McConkey v. Com., loi Pa. 
 416. 
 
 The defendant may be shown to have known that the deceased 
 suspected him of stealing wood and was watching him. State v. 
 Fontenot, 48 La. Ann. 305. 
 
 It may be shown that the deceased caught the defendant, charged 
 with murder, in the act of committing burglary and arson. Black- 
 well V. State, 29 Tex. A pp. 194. 
 
 It may be shown that the defendant had employed his slave, 
 with whose murder he was charged, to murder the wife of the 
 defendant. State v. Posey, 4 Strob. (S. C.) 142. 
 
 Circumstances indicating a rape may be proved to show a 
 motive for murder. Robinson v. State, 114 Ga. 56. 
 
 Evidence received to show that defendant had been guilty of 
 robbery, to show motive for killing the deceased. Terr. v. McGinnis 
 (New Mex.), 61 Pac. 208; State v. Morgan (Utah), 6r Pac. 527. 
 
 Concealment of Illicit Intercourse. 
 
 It is competent to show the pregnancy of the deceased by the 
 defendant. Sage v. State, 127 Ind. 15; State v. Klein, 54 Iowa, 
 183. 
 
 Improper sexual relations between the defendant and the de- 
 ceased are admissible in evidence. People v. Buchanan, 145 
 N. Y. I ; Jackson v. Com., 100 Ky. 239 ; Simons v. People, 150 
 111. 66. 
 
 Crime to Escape Arrest. 
 
 It may be shown that the defendant had committed a previous 
 felony and killed the deceased (an officer) to escape arrest. 
 People V. Pool, 27 Cal. 572.
 
 AMERICAN NOTES. 154^ 
 
 Where the defendant, a slave, was charged with the murder of 
 another slave, it was shown that the defendant was a runaway and 
 was concealed in a place known to the deceased ; that the latter 
 was suspected by the defendant of an intention to disclose the 
 hiding-place, and was threatened with death by the defendant. 
 Jim V. State, 24 Tenn. 145. 
 
 Defendant's motive for killing an officer may be shown to have 
 been fear of arrest becau§e of an indictment in another State. 
 Williams v. Com., 85 Va. 607. 
 
 The State may show that a robbery had been committed, and 
 that the defendants had been arrested for it, to show their motive 
 for killing the officer in charge of them. Miller v. State (Ala.), 
 30 So. 379. 
 
 Murder of a peace officer ; it was shown that the motive to 
 resist was the fact that the defendant had committed a robbery for 
 which he was about to be arrested. State v. Morgan, 22 Utah, 
 162. 
 
 In the case of People v. Rogers, 71 Cal. 565, the defendant was 
 convicted of a murder while committing a burglary in the house of 
 the deceased. As a part of the evidence it was allowed to be 
 shown that the defendant had committed two prior burglaries, at 
 one of which he had stolen the knife and chisel with which he 
 gained entrance to the house of the deceased, and at the other of 
 which he stole the pistol with which he committed the murder. 
 
 There was such a direct connection among these various crimes 
 that they served to identify the prisoner as guilty of the crime 
 charged. 
 
 See also People v. Molineux, 16S N. Y. 264, and extended note 
 after Chapter VII, Poisoning Cases. 
 
 The Case of the Chicago Anarchists. 
 
 A case in which very interesting and very beneficial use was 
 made of circumstantial evidence was the Anarchists' Case, reported 
 as '$>\>\t% et al V. People, 122 111. i. 
 
 In the Chicago Criminal Court, eight anarchists were found 
 guilty of murder, seven of them being condemned to death. The 
 seven were August Spies, Michael Schwab, Samuel Fielden, 
 Albert R. Parsons, Adolph Fischer, George Engel, and Louis
 
 154/' AMERICAN NOTES. 
 
 Lingg. Tiie other, condemned to fifteen years' imprisonment, 
 was Oscar VV. Necfe. 
 
 On May ist, 1886, many workmen in Chicago struck to obtain 
 a reduction of their working day to eight hours. There was great 
 exciten>ent, and many meetings and speeches. 
 
 On the 4iii of May, such a meeting was iield at the Haymarket 
 on Randolph St., in Chicago. This meeting was addressed by 
 several of the defendants, and during tlie address of Spies a charge 
 was made on the crowd by 1 80 pohcemen. Bombs were thrown 
 and guns fired at the pohcemen, and six jiolicemen were killed 
 and six wounded. The defendants were tried for the murder of 
 one of these policemen, Michael J. Degan. 
 
 The corpus delicti was established by undisputed evidence. 
 Degan was killed by a bomb ; of that there was no doubt. It 
 seemed equally well established that not one of the defendants 
 threw the bomb, but they were charged as accessories. 
 
 It was shown that they were all members of several anarchistic 
 societies, particularly one known as the International Arbeiter As- 
 sociation, often called the "Internationals" and the "I. A. A." 
 This association was divided into groups, of which there were 
 about eighty in the United States. Certain members of each 
 group were armed and drilled regularly. The most proficient of 
 these armed groups, including the defendants, were also members 
 of a more exclusive organization known as the " Lehr und Wehr 
 Verein " Each member had a Springfield rifle and other weapons, 
 and each was known by number only. 
 
 The object of these societies was the destruction of organized 
 society and the right of private property. The members openly 
 and secretly advocated the destruction of property, the murder of 
 officers of the law and of property owners, and the general use of 
 deadly weapons, dynamite, bombs, and other explosives. 
 
 The grou;) of defendants published three incendiary news- 
 papers, — Tlie Arbeiter Zeitnng in German, published by Spies, 
 Schwab, Fischer, and Neebe; T/ie Alarm in English, published 
 by Parsons and Fielden ; and a still more inflammable sheet called 
 T/ie Anarchist, published by Engel. These papers published the 
 signals by which the anarchists were called together at various 
 times, the signal for the meeting of May 4th being " Ruhe." 
 They constantly advocated social revolution and war upon the
 
 AMERICAN NOTES. 154^ 
 
 police ami the inililia. Their articles, written by tlie defendants, 
 contained hundreds of expressions like the following: "Daggers 
 and revolvers are easily to be gotten, hanil-^renades are cheaply 
 to be produced ; explosives too can be obtained." " Working- 
 men, arm yourselves." "We wonder whether the workingmen 
 will at last bupply themselves with weapons, d3namite, and prussic 
 acid." '• If we do not bestir ourselves for a bloody revolution we 
 cannot leave anything to our children but poverty and slavery. " 
 " One man armed with a dynamite bomb is equal to one regi- 
 ment of militia." " Dynamite is the emancipator. " " Assassina- 
 tion will remove the evil from the face of the earth." 
 
 Articles were published on " How to use dynamite properly,"' 
 *' Manufacturing Bombs," "Exercise in Arms," and extracts were 
 published from the book of Herr Most giving detailed instructions 
 in the inanufacture and use of bombs and other weapons. 
 
 In many public speeches the defendants had advocated the 
 killing of the police and the militia, using the same arguments and 
 the same language as in their written editorials. 
 
 The date for beginning tlie "social revolution" was May 1st, 
 1 886, for the reason that various labor unions were to strike at 
 that time for the eight-hour day. These defendants did not ap- 
 prove of the eight-hour agitation, except as a means that they 
 could use to bring about total destruction of society. They ex- 
 pected the discontent and want accompanying the strike to drive 
 many workmen to the ranks of the Internationals. The defend- 
 ants urged all to procure arms for the successful resistance of the 
 authorities during the continuance of the strike. They even made 
 arrangements to purchase guns in large quantities. 
 
 In the meantime they had all been experimenting in the 
 manufacture and explosion of bombs. Particularly the defendant 
 Lingg nad been so employed. 
 
 It became material to show that the bomb with which Policeman 
 Degan was killed had been manufactured by Lingg. To tiiis 
 end it was proved first that the bomb was round. Several wit- 
 nesses who saw it thrown so described it, and moreover, it was 
 not of the material of which ordinary gas-pipe bombs are made. 
 The manufacture of round bombs requires greater skill and 
 greater secrecy. 
 
 Lingg was shown to have manufactured such round bombs in
 
 154^' AMERICAN NOTES. 
 
 large numbers. It was also shown that a basketful of his bombs 
 had been carried to the Haymarket meeting. In the next place, 
 the bomb was exploded by means of a fuse. The bombs that 
 IJngg had constructed were all made of two semi-globular shells 
 fastened together, filled with dynamite, and fired by m^ans of a fuse 
 passed through a hole bored for the purpose and attached to a 
 fulminating cap. 
 
 Furtlier, the pieces of the bomb taken from Degan's body 
 were of the same chemical composition as the bombs made 
 by Lingg. They were composed of tin and lead, with traces 
 of antimony, iron, and zinc. There is no commercial substance 
 containing all these ingredients. In Lingg's bombs the tin 
 had been added to the lead to procure sufficient resistance for 
 explosion. 
 
 The bomb that exploded had on it a small iron nut, which was 
 extracted from the body of a bystander. This indicated tliat the 
 two semi-globular halves of the bomb had been fastened together 
 with a bolt. Practically all of the bombs made by Lingg, and 
 later discovered, were made of the two semi-globular halves, bolted 
 together, and this nut taken from the body of the bystander 
 exactly fitted those bolts. Lingg himself had been seen making 
 such bombs, with a handkerchief over his face to prevent the 
 inhalation of gas. He had bought dynamite. A poisonous gas 
 exhales from dynamite. The conclusion follows that he put dyna- 
 mite in the bombs that he was seen to make. 
 
 In Lingg's room, after the murder, were found various articles, 
 among them the following : a cold-chisel, a file, shells, loaded 
 cartridges, sheets of lead, bolts, two empty gas-pipe bombs and 
 two loaded with dynamite, a rifle, a round bomb loaded with 
 dynamite, a piece of block tin, a piece of candlestick composed 
 of tin, lead, antimony, and zinc, fuse of various lengths, and ful- 
 minating caps. He had every ingredient necessary for the making 
 of bombs like the one that killed Degan. 
 
 Differences in the exact amounts of these ingredients in the 
 different bombs would be accounted for by the fact that he made 
 each semi-globe separately with a small ladle over the kitchen 
 stove, casting each in a small clay mould made by himself. 
 
 Lingg's purpose in making ihe bombs is to be found from the 
 purposes for which the International Arbeiier Association existed.
 
 AMERICAN NOTES. I545 
 
 These have been before stated, and were made apparent from the 
 publications and speeches of the other defendants. 
 
 'I'here was evidence of a distinct plan on the part of the de- 
 fendants to attack the police of the whole city on the night in 
 question. Members of the Association helped themselves to 
 bombs brought by Lingg to the rendezvous, and were to make 
 separate attacks upon the police stations, gradually concentrating 
 to fight in the centre of the city. This plan had to be changed 
 because the police were concentrated near the neighborhood of 
 the Haymarket. 
 
 There was a vast array of evidence of the foregoing sorts, and 
 the defendants were convicted under a statute of Illinois mak- 
 ing accessories punishable as principals. Tiie Court found that 
 Degan's death was directly brought about by the conspiracies and 
 plans of the defendants and other " Internationals." The bombs 
 were made and obtained in pursuance of the plan. The meeting 
 was called at the Haymarket on the appointed evening. That 
 day the signal "Ruhe" was printed, to begin the revolution. In 
 pursuance of the plan, and varying from it only as was made nec- 
 essary by the location of the police, a bomb was first hurled at 
 them and then the " Internationals" opened fire with guns. The 
 jury were justified in believing that the bomb was thrown either by 
 a member of the conspiracy or by an agent employed to throw it. 
 
 This case aroused the greatest of interest and excitement. 
 The accused were found guilty and executed, as already stated. 
 
 Declarations and Acts Indicative of Guilty Consciousness or 
 
 Intention. 
 
 After the doing of an act has been proved, to show that a cer- 
 tain person did it, a prior declaration of his intention to do it may 
 be proved. Dodge v. Bache, 57 Pa. St. 421. 
 
 Premeditation, Intent, and Malice. 
 
 Malice, deliberation, or premeditation must in nearly all cases 
 be shown by circumstantial evidence. The number of circum- 
 stances necessary to show this will of course vary. " One case 
 may be proved by a long train of circumstances and events, an- 
 other by a few sharp and startling facts, and in still another the 
 jury may find in the very act of killing, in the manner in which it
 
 154^ AMERICAN NOTES. 
 
 was done, the weapon used, the number of blows and wounds, 
 the lime and place where effected, tiie disposition of the victim, 
 and the objects accomplisiied, everything requisite to satisfy them 
 of the presence of deliberation and premeditation as components of 
 the crime." People v. Walworth, 4 N. Y. Crini. 355. 
 
 The nature of the weapon, the number of blows given, and pre- 
 vious conduct are relevant to prove malice and deliberation. 
 State V. Greenleaf, 71 N. H. 606 ; Com. v. Kilpatrick, 204 Pa. 
 fet. 218 ; Thomas v. State (Tex.), 72 S. VV. 17S. 
 
 The number and position of the wounds on the body of the 
 deceased may be shown to prove the deadly intent with which the 
 defendant fired. People v. Walters, 98 Cal. 138. 
 
 Declarations of Accused to Prove his Intent or Malice. 
 
 Declarations of one accused of murder made before the crime are 
 admissible to prove intent. State v. Ridgely, 2 Har. &: McH. 120. 
 
 The testimony of a witness who overheard the defendant say he 
 was going to kill the deceased and ask for some shells is admissi- 
 ble. Davis V. State, 126 Ala. 44. 
 
 Proof of Intent — Declarations. 
 
 In the case of Mutual Life Ins. Co. v. Hillmon, 145 U. S. 
 285, which was a suit on an insurance policy, the defence of the 
 company was that the insured, Jno. W. Hillmon. was still alive, 
 but that he had killed one Walters, and the body of the latter had 
 been buried as that of Hillmon. To prove that this body was not 
 that of Hillmon, the following evidence was held admissible; that 
 Walters disappeared at about that time and was not heard from 
 afterwards; that it had been his intention to go on a trip with 
 Hillmon at that time, as was evidenced by his letters to his sister 
 and to his betrothed, and that the body buried was similar to 
 that of Walters. The letters expressing his intention to go with 
 Hillmon on the very trip where Hillmon was claimed to have been 
 killed was held admissible. 
 
 Declarations showing malice towards the victim are admissible 
 (Mead v. Husted, 49 Conn. 337 ; State v. Hoyt, 46 Conn. 330 ; 
 Com. V. Goodwin, 14 Gray (Mass.), 55 ; Com. v. Holmes, 157 
 Mass. 235) ; and so is a declaration of intention to do the act. 
 Mills V. Sword Lumber Co., 63 Conn. 108.
 
 AMERICAN NOTES. 154" 
 
 But a tleclaration that one will not do a certain act is not ad- 
 missible to show that he did not do it. Fowler v. Madison, 55 
 
 N. H. 171. 
 
 Purpose on Leaving Home. 
 
 When an act is part of the res gestce, statements explanatory 
 thereof and concomitant therewith are admissible. Oral and writ- 
 ten statements made on leaving home as to purpose and place of 
 going admitted. Hunter v. State, 40 N. J. L. 495. 
 
 Shiie of Mind in Homicide. 
 
 The State may show that the accused was armed and vindictive 
 shortly before the homicide. Kernan v. State, 65 Md. 253. 
 
 The existence of lawsuits between parties is admissible to show 
 their state of feeling. State v. Zellers, 7 N. J. L. 220. 
 
 A letter written a month before the homicide admitted to show 
 the state of defendant's mind toward the deceased. Com. v. 
 Krause, 193 Pa. St. 306. 
 
 Evidence of prisoner's being armed and in a vicious humor just 
 before the offence is admissible, even though it incidently dis- 
 closes another crime. Kernan v. State, 65 Md. 253. 
 
 Allusions to a Contemplated Act. 
 
 Where defendant was charged with the murder of his father, ob- 
 scure allusions made by him to some coming event were admitted. 
 " The fact that the language might possibly have an innocent 
 meaning did not prevent its consideration by the jury, who would 
 of course be called upon to decide whether such was the fact, or 
 whether it was a dark hint thrown from a mind that already felt 
 the shadow of the coming tragedy." State v. Hoyt, 47 Conn. 
 518. 
 
 Defendant was accused of having committed a crime for 
 hire. His statement that he was soon to receive some money was 
 admitted. State v. Green, 92 N. C. 779. 
 
 In State v. Hayward, 62 Minn. 474. it was shown that several 
 months before the crime in question the accused had consulted 
 with a hack-driver about letting his team run away with a certain 
 individual over a bluff into a lake, and had asked him how much 
 he would take for the horses and hack. This was admissible to 
 show that the accused contemplated murder.
 
 154^ AMERICAN NOTES. 
 
 Possess iof I of Knowledge which only the Criminal Could Have. 
 
 Where one is charged with a burglary and homicide, he may be 
 shown to have had a guilty knowledge of the location of objects in 
 the house entered. State v. Miller, loo Mo. 606. 
 
 Defendant, charged with the murder of his wife, was shown to 
 have married again within three weeks after her disappearance, 
 and to have said that she would never come back because she was 
 dead. Wilson v. State, 43 Tex. 472. 
 
 Conduct Indicating Guilty Knowledge. 
 
 Where the defendant was charged with strangling a woman, on 
 September lyih, it was admitted in evidence that on September 22d 
 the defendant remarked after a row had occurred in a grocery, that 
 he could easily rid the grocery, and " could kill a man by throwing 
 him on the ground, jamming his knees into him, and knocking the 
 breath out of him, then grasping him by the throat and his breath 
 would never return." The evidence showed that this may have 
 been the manner in which the deceased was killed. Moore v. 
 State, 2 Ohio St. 500. 
 
 Subsequent conduct showing consciousness of guilt is admissible. 
 McCabe v. Com., 8 Atl. 45. 
 
 Where a body was found in a well, it was shown that prior to 
 the discovery the defendant was seen looking into the well ; that 
 when another left the house with a lantern the defendant said 
 he knew that other was going to look into the well ; and that after 
 the discovery, although others went to the well, the defendant did 
 not. Com. V. Umilian, 177 Mass. 582. 
 
 " Sometimes a person is detected as the author of a crime by 
 showing an unusual anxiety to discover the perpetrator ; at other 
 times the discovery is led to by the person showing too much in- 
 difference. In some instances the observation that the person 
 appears to know too much about the transaction leads to the dis- 
 covery ; at other times the inquiry is started by his appearing to 
 know too little. These are generally acts that in themselves show 
 no disposition to do mischief; but it is because they are unnatural, 
 because they tend to the conclusion that they are produced by a 
 mind conscious of its guilt, that they are provable against the 
 accused." Moore v. State, 2 Oliio St. 502. In this case defend-
 
 AMERICAN NOTES. 154W 
 
 ant's conduct when he was told that the body of the deceased had 
 been found was given in evidence. 
 
 In State v. Miller, 156 Mo. 76, the defendant was shown to be 
 the murderer by proof of threats and motive and by the guilty 
 conscience he evinced when the search of a certain well was pro- 
 posed. He asserted that the well had damps in it, and that it 
 would be dangerous to go into it. In the well was found an axe 
 helve with which the murder was don-e. 
 
 Fo re ktww ledge of Death. 
 
 In a recent case reported in the daily papers, it appears that a 
 man in Chicago was accused of marrying and murdering eight 
 wives in as many years. The means used by him seemed to be 
 poison, yet if so, it defied chemical analysis. But he had married 
 the wives under different names, and his operations were discovered 
 through his action in advertising under a new name for a ninth 
 wife, while his eighth wife was still lingering in sickness and three 
 days before her death. Apparently he was very confident that she 
 would soon be dead, and it would seem that his previous expe- 
 riences warranted his confidence. Such premature confidence is 
 strong evidence of guilt. In this case the advertisement was an- 
 swered fortuitously by his still living wife's own sister. 
 
 Where the defendant was charged with the murder of her sister by 
 poison in pursuance of a scheme to secure insurance money, one of 
 the strongest circumstances against the defendant was the fact that 
 several times while taking care of her sister she said she knew her 
 sister would never get well and that she had had a terrible dream 
 warning her of her sister's impending death. At the time her sister 
 was seemingly much better, but shortly after she had a sudden 
 sinking spell and died. Com. v. Robinson, 146 Mass. 570. 
 
 The defendant in a murder case may be shown to have said 
 that he wished the deceased would die and that some day the 
 deceased would be found dead in his fields. Wade v. State, 65 
 Ga. 756. 
 
 Where the deceased was a material witness against the defend- 
 ant in a former trial, it was shown that the latter had said the 
 deceased would never appear at that trial. Caldwell v. State, 
 28 Tex. App. 566.
 
 I54.r AMERICAN NOTES. 
 
 Malignant Indifference. 
 
 Where tlic defendant was charged with the murder of his wife it 
 may be shown that on the day after her death he shed no tears and 
 was indifferent, and tliat when one remarked to him that it was 
 a sad affiair at iiis house, he repHetl, "Yes, I had a load of oats 
 stolen." People v. Greenfield, 85 N. Y. 75, 39 Am. Rep. 636. 
 
 Where the defendant was charged with poisoning his seventeen 
 year old wife during her confinement, it was allowed to be proved 
 that he had threatened to send her home to her father, had called 
 her " a d — d big-footed scjuaw, had forced her to do dangerous labor 
 out-doors in insufficient clothing, and that when she was dying . . . 
 he commenced talking about his orchard and improving his home, 
 and put on a jovial and frivolous air." State v. Cole, 63 Iowa, 695. 
 
 Danger of Giving Demeanor too much Weight. 
 
 " Such indications, however, are by no means conclusive, and 
 must depend greatly upon the mental characteristics of the indi- 
 vidual. Innocent persons, appalled by the enormity of a charge 
 of crime, will sometimes exhibit great weakness and terror, and 
 those who have been crushed with the weight of great sorrow will 
 manifest the greatest composure and serenity in their grief, and 
 meet it without the shedding of a tear." Greenfield ?'. People, 85 
 N. Y. 75. In this case the defendant was accused of killing his 
 wife, and it was allowed to be shown that he shed no tears. 
 
 Threats — General Authorities. 
 
 Threats to do the act may be proved. Caverno v. Jones, 61 
 N. H. 623; State v. Day, 79 Me. 120; State %k Bradley, 64 Vt. 
 466, 24 Atl. 1053 ; Mead v. Husted, 49 Conn. 337 ; State v. 
 Hoyt, 46 Conn. 330 ; State v. Hawley, 63 Conn. 49 ; State v. 
 Kallaher, 70 Conn. 398 ; State v. Fry, 67 Iowa, 475 ; People 
 V. Eaton, 59 Mich. 559 ; Com. v. Holmes, 157 Mass. 233 ; Com. v. 
 Crowe, 165 Mass. 140; Com. v. Crossmire, 156 Pa. 304; School- 
 craft V. People, 117 111. 271; State v. Harrod, 102 Mo. 590; 
 State V. McKinney, 31 Kan. 570. 
 
 Where the defendant took no part in the act of murder, he 
 may be shown to have been an accessory by his previous acts, 
 declarations, and threats. State v. Prater, 52 W. Va. 132.
 
 AMERICAN NOTES. 154^ 
 
 The defendant charged wilh assault with intent to kill may be 
 shown to have challenged the prosecuting witness to meet him in a 
 dark alley. Low v. State (Tex.), 20 S. W. 366. 
 
 The State may show that the defendant had previously made 
 threats against the deceased to prove malice or disi:)osilion toward 
 the deceased. State z-. Sullivan, 5 i Iowa, 142 ; Babcock z'. People, 
 13 Colo. 515 ; State v. Stockhouse, 24 Kan. 445 ; State v. Agnew, 
 10 N. J. L. J. 165 ; Stewart v. State, i Ohio St. 66. 
 
 General Threats. 
 
 Threats may be proved even though they were general in nature 
 and made no specific mention of the deceased, unless it is evident 
 that they had no connection with the crime in question. Jordan v. 
 State, 79 x-Ma. 9 : State v. Windahl, 95 Iowa, 470 ; State v. Hymer, 
 15 Nev. 49; Hopkins v. Com., 50 Pa. g, 88 Am. Dec. 518; 
 Snodgrass v. Com., 89 Va. 679. 
 
 The State may show that defendant threatened to kill somebody 
 before night, though he did not mention the deceased. State v. 
 Vance, 29 Wash. 435. 
 
 The defendant may be sliown to have said that he would " kill 
 a man before sundown." Hodge v. State, 26 Fla. 11. 
 
 Threats are admissible though not made directly against the de- 
 ceased. Hopkins v. Com., 50 Pa. St. 9. 
 
 The defendant may be shown to have said that he was going to 
 get even with somebody, though no name was mentioned. State 
 V. Harlan, 130 Mo. 381. 
 
 Threats against a Class. 
 
 One on trial for killing a policeman may be shown to have said 
 that he would " kill any policeman who tried to arrest him again." 
 State V. Grant, 79 Mo. 113, 49 Am. Rep. 218, 
 
 Threats against Third Persons. 
 
 Generally threats made by the defendant against persons, not in 
 any way involved in the crime with which he is charged, are not 
 generally admissible against him. State v. Driscoll, 44 Iowa, 65 ; 
 Carr v. State, 23 Neb. 749 ; State v. Barfield, 29 N. C 299 ; 
 Abernathy v. Com., loi Pa. St. 322. 
 
 A threat to shoot another constable than the one making the
 
 154" AMERICAN NOTES. 
 
 arrest is admissible as against one charged with shooting the officer 
 arresting him. Palmer v. People, 138 111. 356, 32 Am. St. Rep. 
 146; State 7'. Partlow, 90 Mo. 608, 59 Am. Rep. 31 (similar 
 case). 
 
 Where there is evidence tending to show that the defendant 
 killed the deceased believing him to be another, threats by the 
 defendant against that other are admissible. Clarke v. State, 78 
 Ala. 474, 56 Am. Rep. 45. 
 
 Threats made by defendant to kill A are not admissible on his 
 trial for the killing of B. Abernathy v. Com., loi Pa. St. 322. 
 
 Threats agai?ist Prosecuting Attorney. 
 
 It is error to admit threats by the accused against the prosecuting 
 attorney made subsequent to the crime unless there is something to 
 show an intent to prevent investigation or a consciousness of guilt. 
 Gawn V. State, 7 Circ. Dec. 19, 13 Ohio Circ. Ct. 116. 
 
 Threats to Commit a Different Crime. 
 
 A threat to rob is admissible on a trial for murder. Com. v. 
 Farrell, 187 Pa. St. 408. 
 
 Threats with a Different Weapon. 
 
 Where the defendant is charged with murder by poisoning, it is 
 proper to show that he had threatened the deceased with a sling 
 shot. Le Bean v. People, 34 N. Y. 223. 
 
 Exhibition of a Weapon. 
 
 A threat is more significant if a deadly weapon is exhibited at 
 the time. Benedict v. State, 14 Wis. 459. 
 
 The previous possession of a gun with threats to kill the de- 
 ceased may be proved. People v. Fitzgerald, 138 Cal. 39. 
 
 Unconnnunicated Threats. 
 
 Uncommunicated threats are admissible to show motive and 
 intention. Com. v. Keller, 191 Pa. St. 122. 
 
 Threats and the purchase of ammunition by the deceased 
 are not admissible on behalf of the accused when he did not 
 know of either. Turpin v. State, 53 Md. 462. And see Notes 
 to Chapter 5.
 
 AMERICAN NOTES. 154 a* 
 
 Time of Making Threats. 
 
 Where thirteen years before the crime the accused had said 
 " he would like to put a ball through his father's heart, but the 
 heart was so much harder than the ball that he thought it would 
 not penetrate it," a jury may well give very little weight to such 
 language because of its remoteness. Goodwin v. State, 96 Ind. 
 
 550- 
 
 Threats of the defendant against the deceased may be proved, 
 even though they were made weeks or even months before the 
 crime, in case any connection whatever can be made between the 
 threats and the act. The lapse of time affects only their weight as 
 evidence. Karr v. State, 106 Ala. i ; White v. Terr., 3 Wash. T. 
 397 ; Tuttle V. Com. (Ky.), 33 S. W. 823. 
 
 Threats may be given in evidence irrespective of the length of 
 time since elapsed. " If a long period intervened, during which 
 there were opportunities of doing the threatened injury, and there 
 was no attempt to do it, and no repetition of the threat, it would 
 be but a slight circumstance in connecting the accused with the 
 injury, and there would be more reason for regarding it as having 
 been a mere careless, thoughtless utterance or idle bravado, or 
 ebullition of temporary passion. The length of time would mipair 
 its probative force, but would not render it inadmissible." Redd 
 V. State, 68 Ala. 492. 
 
 Threats made four or five years back held too remote. Mc- 
 Masters v. State (Miss.), t^i So. 2. 
 
 Previous Quarrels and Ill-Feeling. 
 
 A previous difficulty between the defendant and the deceased 
 is admissible to show motive and malice. Finch v. State, 81 Ala. 
 41 ; White v. State, 30 Tex. App. 652 ; State z/. Ackles, 8 Wash. 
 462 ; Brown v. State, 51 Ga. 502 ; Rone v. Com., 70 S. W. 1042. 
 
 But some connection between that difficulty and the homicide 
 must be shown. Flint v. Com., 5 Ky. Law. Rep. 51 ; Pound v. 
 State, 43 Ga. 88 ; Hudson v. Com., 69 S. W. 1079. 
 
 Previous ill-feeling and malice toward the deceased may be 
 proved. State v. Cole, 63 Iowa, 695 ; Holmes v. State, 100 Ala. 
 80 ; State v. De Angelo, 9 La. Ann. 46 ; Aycock v. State, 2 Tex. 
 App. 38 1.
 
 154^* AMERICAN NOTES. 
 
 Dissatisfaction with a previous settlement for wages may be 
 proved. Hudson v. State (Tex.), 70 S. W. 764. 
 
 Tlie State may show that the deceased liad shortly before chal- 
 lenged the vote of the defendant. Thompson v. State, 55 Ga. 47. 
 
 A disputed account between defendant and deceased admitted 
 to prove ill-feeling. State v. Gooch, 94 N. C 987. 
 
 It may be shown that at a previous trial where defendant was a 
 witness, the deceased gave evidence to impeach defendant's testi- 
 mony and the latter was very angry. Rea v. State, 76 Tenn. 356. 
 
 Feuds. 
 
 Where the defendant and the deceased were aligned with two 
 parties who were involved in a continuous feud, previous fights of 
 other members of the two parties may be proved. McGinnis v. 
 State, 31 Ga. 236. 
 
 The origin of a continuous feud between the parties may be 
 shown. Coxwell v. State, 66 Ga. 309. 
 
 Remote Quarrels. 
 
 Evidence of remote quarrels is not admissible unless they are 
 connected with the homicide. Horton v. State, no Ga. 739; 
 Woodward v. State (Tex.), 58 S. W. 135. 
 
 Evidence of a previous difficulty is admissible, even though it 
 be a remote one. People v. Brown, 76 Cal. 573. 
 
 Details of the Previous Quarrels. 
 
 The circumstances and merits of the previous difficulty are not 
 admissible (Tarver v. State, 43 Ala. 354 ; McAnally v. State, 74 
 Ala. 9 ; Stewart v. State, 78 Ala. 436 ; People v. Thomson, 92 
 Cal. 506) ; but sucli details may be admissible to prove threats and 
 ill-feeling. State v. Anderson, 45 La. Ann. 651. 
 
 The defendant need not be given an opportunity to cross-ex- 
 amine as to the details and circumstances of a previous difficulty 
 between him and the deceased. Com. v. Silk, in Mass. 431. 
 
 Wife Murder. 
 
 Previous bad feeling between the defendant and his wife may be 
 
 proved. Shaw^-. State, 60 Ga. 246 ; Painter v. People, 147 111. 444. 
 
 Where defendant is charged with the murder of his wife, it may
 
 AMERICAN NOTES. 154^* 
 
 be shown lliat within two months tliere had been bruises on her 
 body made l)y iiim. Philhps -'. State, 62 Ark. 119. 
 
 Threats of defendant to shoot his wife and their previous domes- 
 tic infehcity may be proved. People v. Simpson, 48 Mich. 474. 
 
 A previous aggravated assault upon the wife may be proved. 
 Powell V. State (Tex.), 70 S. W. 218. 
 
 Defendant may be shown to have mistreated his wife for five 
 years preceding the crime. Spears v. State (Tex.), 56 S. W. 347. 
 
 But defendant's ill-treatment of his wife ten years previously 
 sliould not be admitted. Raines v. State (Miss.), ^^i So. 19. 
 
 Proof of Similar Acts or Words in General. 
 
 " When there is a question whether a person said or did some- 
 thing, the fact that he said or did something of the same sort on a 
 different occasion may be proved if it shows the existence on the 
 occasion in question of any intention, knowledge, good or bad 
 faith, malice, or other state of mind, or of any state of body or 
 bodily feeling, the existence of which is in issue or is or is deemed 
 to be relevant to the issue ; but such acts or words may not be 
 proved merely in order to show that the person so acting or 
 speaking was likely on the occasion in question to act in a similar 
 manner." Stephen Dig. Evid. Art. 11. 
 
 " In such cases it might well happen that a man should shoot 
 another accidentally, but that he should do it twice within a short 
 time would be very unlikely ; so, it might easily happen that a man 
 using a gun might fire a rick of barley once by accident, but that 
 he should do it several times in succession would be very improb- 
 able. So, a person might die of accidental poisoning, but that 
 several persons should so die in the same family at different times 
 would be very unlikely. So, that a child should be suffocated in 
 bed by its mother might happen once, but several similar deaths 
 in the same family could not reasonably be accounted for as 
 accidents. So, in the case of embezzlement, a single false entry 
 might be accidentally made ; but the probability of accident would 
 diminish at least as fast as the instances increased." State v. 
 Lapage, 57 N. H. 245, 294. 
 
 Other crimes may be relevant if they show the same general 
 purpose. Brown v. Com., 76 Pa. St. 319 ; Kramer v. Com., 87 
 Pa. St. 299 ; Goersen v. Com., 99 Pa. St. 388.
 
 154^ AMERICAN NOTES. 
 
 Res Inter Alios. 
 
 As to the meaning of the maxim, " Res inter alios acta alteri 
 nocere debet," Stephen says in his Appendix, Note VI : " You 
 are not to tlraw inferences from one transaction to anotlier which 
 is not si)ecirically connected with it merely because tiie two re- 
 semble each other. They must be linked together by the chain 
 of cause and effect in some assignable way before you ran draw 
 your inference. 
 
 "The exceptions to the rule apply more frecjuently to criminal 
 than to civil proceedings, and in criminal cases the Courts are 
 always disinclined to run the risk of prejudicing the prisoner by 
 permitting matters to be proved which tend to show that he is a 
 bad man, and so likely to commit a crime." 
 
 Other Crimes — /;/ Gefiera/ when not Admissible. 
 
 Proof of other crimes is not generally admissible. Lamb v. 
 State, 66 Md. 285. 
 
 Other offences of a like nature are not provable merely to show 
 that defendant would be likely to commit the crime in (juestion. 
 Clark V. State, 47 N. J. L. 556 ; Ryan v. State, 60 N. J. L. 552 ; 
 State V. Sprague, 64 N. J. L. 419 ; Bullock v. State, 65 N. J. L. 
 
 557- 
 
 "The question is, whether A committed a crime. The fact that 
 he formerly committed another crime of the same sort, and had 
 a tendency to commit such crimes, is deemed to be irrelevant." 
 Stephen, Dig. Evid. Art. 10. See Dodge v. Haskell, 69 Me. 
 429; State V. Renton, 15 N. H. 169, 174; State z;. Wentvvorth, 37 
 N. H. 197, 209 ; Reed v. Spaulding, 42 N. H. 1 14-124; State v. 
 Lapage, 57 N. H. 245 ; State v. HopI<ins, 50 Vt. 316; State v. 
 Kelly, 65 Vt. 531, 27 Atl. 203, 36 Am. Rep. 884. The fact that 
 the accused has committed similar frauds or crimes is incompetent. 
 Jordan v. Osgood, 109 Mass. 457 ; Costelo v. Crowell, 139 Mass. 
 588 ; Com. V. Call, 21 Pick. (Mass.) 522 ; Com. v. Wilson, 2 Cush. 
 (Mass.) 590; Com. v. Campbell, 7 Allen (Mass.), 541, 83 Am. 
 Dec. 705 ; Jordan v. Osgood, 109 Mass. 457 ; Com. v. Jackson, 
 132 Mass. 16, 19, 44 Am. Rep. 299, note; Miller v. Curtis, 158 
 Mass. 129; Janzen v. People, 159 111. 440; Boyd v. U. S., 142 
 U. S. 450; Shaffner v. Com., 72 Pa. 60.
 
 AMERICAN NOTES. 154^^* 
 
 Other crimes not admissible. Barton v. State, i8 Ohio, 221 
 (other tiiefts) ; Coble v. State, 31 Ohio St. 100 (other assaults) ; 
 Farrer v. State, 2 Ohio St. 54 (other poisonings, the victims 
 being of the same family) ; Snurr v. State, 4 Ohio Circ. Ct. 393 
 (other acts of rape) ; Knight v. State, 54 Ohio St. 365 (other 
 acts of bribery) ; Rose v. State, 7 Circ. Dec. 226, 13 Ohio Circ. 
 Ct. 342, 56 Ohio St. 779 (seduction before murder). 
 
 In an action for assault, similar assaults cannot be proved. 
 Mathews v. Terry, 10 Conn. 459. 
 
 Other crimes cannot be shown on cross-examination. Hamilton 
 v. State, 34 Ohio St. 82. 
 
 Other Crimes — Wheti Admissible. 
 
 Proof of other crimes admissible to show motive and intent. 
 Goersen r. Com., 99 Pa. St. 388, 106 Pa. St. 477 (arsenical 
 poisoning) ; McConkey v. Com., loi Pa. St. 416 ; Kramer v. Com., 
 8/ Pa. St. 299 ; Com. v. Shepherd, 2 Pa. St. Dist. 345. 
 
 If the evidence is admissible on other grounds, its competency 
 is not affected by the fact that it proves other crimes. Brown v. 
 State, 26 Ohio St. 176. 
 
 The commission of a burglary by the defendant is admissible to 
 explain why an officer was in a certain house where he was killed 
 by defendant. Com. v. Major, 198 Pa. St. 290. 
 
 The State may prove the circumstances of making the arrest, 
 including the fact that the defendant killed one of the otificers. 
 Com. V. Biddle, 2co Pa. St. 647. 
 
 Receiving Stolen Goods — Other Instances. 
 
 " Where* proceedings are taken against any person for having 
 received goods, knowing them to be stolen, or for having in his 
 possession stolen property, the fact tliat there was found in the 
 possession of such person other property stolen within the pre- 
 ceding period of twelve months, is deemed to be relevant to the 
 question whether he knew the property to be stolen which forms 
 the subject of the proceedings taken against him." Stephen's Dig. 
 Evid. Art 1 1. 
 
 Other instances of receiving stolen goods are provable. Com. 
 V. Charles, 21 Pittsb. Leg. J. 11, 14 Phila. 663 ; Com. v. Moorby,
 
 154/* AMERICAN NOTES. 
 
 8 Phila. 615 ; Com. 7: Johnson, 133 Pa. St. 293 ; Kilrow v. 
 Com., 89 Pa. St. 480. 
 
 To prove guiltv knowledge on the part of receiver of stolen 
 goods, it may be proved tiiat he had before received stolen goods 
 from the same person. State v. VVani, 49 Conn. 440; Com. v. 
 Johnson, 133 Pa. St. 293 ; Shriedley v. State, 23 Oliio St. 130. 
 
 It is not necessary that the goods before received should have 
 been stolen from the same person, nor be of the same character. 
 State V. Ward, 49 Conn. 441, 442. 
 
 A is charged with receiving two j)ieces of silk from B. knowing 
 them to have been stolen by him from C. The facts that A re- 
 ceived from B many other articles stolen by him from C in the 
 course of several months, and that A pledged all of them, are 
 deemed to be relevant to the fact that A knew that the two 
 pieces of silk were stolen by B from C. R. v. Dunn (1826), 
 I Moo. C. C. 146; Stephen's Dig. Evi(]. Art. 11. 
 
 Possession of other stolen goods purchased from the same thief 
 is evidence of guilty knowledge. People v. Grossman, 168 N. Y. 
 47 ; State V. Wood, 49 Conn. 429; People v. Doty, 175 N. Y. 
 164. 
 
 Other Thefts. 
 
 Other thefts to show knowledge of ownership and intent to 
 steal. People v. Machen, loi Mich. 401 ; Housh v. People, 24 
 Colo. 262 ; Williams v. People, 166 111. 132. 
 
 Proof of Fraudulent Intent. 
 
 Obtaining property of other persons in the same manner to 
 show fraudulent intent. Com. v. Lubinsky, 182 Mass. 142 ; 
 State V. Jackson, 112 Mo. 585; State v. Wilson, 72 Minn. 522. 
 
 Proof of other similar fraudulent acts is admissible to show 
 intent to cheat and defraud. Bloomer v. State, 48 Md. 521. 
 
 In Bottomley v. U. S., i Story, 135. 142, to show fraud in the 
 importation of goods, evidence of other importations by the party 
 was admitted. Judge Story says : '• But it appears to nie clearly 
 admissible upon the general doctrine of evidence in cases of con- 
 spiracy and fraud, where other acts in furtherance of the same 
 general fraudulent design are admissible : first, to establish the 
 fact that there is such a conspiracy and fraud ; and, secondly,
 
 AMERICAN NOTES. 1 54^* 
 
 to repel the suggestion that the acts might be fairly attributed to 
 accident, m-istake, or innocent rashness or negh'gence. In most 
 cases of conspiracy and fraud, the question of intent, or purpose, 
 or design in the act done, wliether innocent or illegal, whether 
 honest or fraudulent, rarely admits of direct and positive proof; 
 but it is to be deduced from various circumstances of more or 
 less stringency, and often occurring not merely between the same 
 parties, but between the party charged with the conspiracy or 
 fraud and third persons. And in all cases where the guilt of the 
 party depends upon the intent, purpose, or design with which 
 the act is done, or upon his guilty knowledge thereof, I under- 
 stand it to be a general rule that collateral facts may be examined 
 into, in which he bore a part, for the purpose of establishing such 
 guilty intent, design, purpose, or knowledge." Thereupon follow 
 examples where such evidence is admitted as prosecutions for 
 the utterance of a forged bill or note, for the utterance of counter- 
 feit money, and for receiving stolen goods. 
 
 A is charged with attempting to obtain money by false pre- 
 tences, by trying to pledge to B a worthless ring as a diamond 
 ring. 
 
 The fact that two days before A tried, on two separate occa- 
 sions, to obtain money from C and D respectively, by a similar 
 assertion as to the same or a similar ring, and that on another 
 occasion on the same day he obtained a sum of money from E by 
 pledging as a gold chain a chain which was only gilt, are deemed 
 to be relevant, as showing his knowledge of the quality of the 
 ring. R. v. Francis (1874), L. R. 2 C. C. R. 128. The case of 
 R. V. Cooper (1875), ^ Q- B. D. (C. C. R.) 19, is similar to 
 R. V. Francis, and perhaps stronger. Stephen's Dig. Evid. Art. 1 r. 
 
 To prove a conspiracy to defraud, it may be shown that goods 
 bought by one were offered for sale by another below cost. 
 Blum V. State, 94 Md. 375. 
 
 Fo-gery. 
 
 To prove guilty knowledge, it is permissible to prove that the 
 accused had in his possession about the same time other forged 
 instruments. Bloomer z'. State, 48 Md. 521; Bell v. State, 57 
 Md. 108; Bishop V. State, 55 Md. 138. 
 
 Proof of other forgeries and the possession of other forged
 
 154/^* AMERICAN NOTES. 
 
 paper. People v. Frank, 28 Cal. 507 ; Boyd v. Boyd, 164 N. Y. 
 234 ; Com. V. Miller, 3 Cush. 243 ; State v. Prins, 113 Iowa, 72 ; 
 Anson v. People, 14S 111. 494. 
 
 To prove forgery, practice copies made by the supposed forger 
 are relevant. Penn. Co. for Insurance v. Railroad Co., 153 Pa. 
 160. 
 
 To prove that a note Was raised in amount, it is proper to 
 admit a caril showing practice work in the alteration of figures. 
 Wheeler v. Ahlers, 189 Pa. 138. 
 
 Ferjury. 
 
 On trial for perjury, it is permissible to show that the witness 
 testified to immaterial matters falsely for the purpose of showing 
 intention and to rebut any claim of mistake. Dodge v. State, 
 4 Zab. 456. 
 
 Co u n tcrf citing. 
 
 "A man might think the money he passed was good, and he 
 might be mistaken once or even twice ; but the presumption of 
 mistake lessens with every repetition of the act of passing money 
 really counterfeit." People v. Sharp, 107 N. Y. 467. 
 
 A is charged with uttering on the 12th December, 1854, a coun- 
 terfeit crownpiece, knowing it to be counterfeit. 
 
 The facts that A uttered another counterfeit crownpiece on the 
 nth day of December, 1854, and a counterfeit shilling on the 4th 
 January, 1855, are deemed to be relevant to show A's knowledge 
 that the crownpiece uttered on the 1 2th was counterfeit. R. v. 
 Forster (1855), Dear. 456 ; and see R. v. Weeks (1861), L. & C. 
 18 ; Stephen's Dig. Evid. hx\. 11. 
 
 Possession of other counterfeit money to prove intent and knowl- 
 edge in uttering. State v. Hess, 5 Ohio, 9 ; Com. v. Hall, 4 Allen, 
 306. 
 
 To prove scienter and intent in passing counterfeit money other 
 crimes of the sort are admissible. State v. Van Houten, Pen. 
 672 ; State v. Robinson, i Harr. 507. 
 
 Other utterances of counterfeit money. Stalker v. State, 9 Conn. 
 341; Com. V. Bigelow, 8 Mete. 235; Com. v. Jackson, 132 
 Mass. 18; State v. McAllister, 24 Me. 139; Griffin v. State, 14 
 Ohio St. 55.
 
 AMERICAN NOTES. 154?'* 
 
 Mutual Disposition in Adultery. 
 
 On trial for adultery, prior acts of adultery between the same 
 parties are admissible to prove their mutual disposition. State v. 
 Jackson, 65 N. J. L. 62 ; State v. Snover, 65 N. J. L. 289. 
 
 Other acts of adultery and other improper familiarities may be 
 proved to show an adulterous disposition. " When adulterous 
 disposition is shown to exist between the parties at the time of the 
 alleged act, then mere opportunity, with comparatively slight cir- 
 cumstances showing guilt, will be sufficient to justify the inference 
 that criminal intercourse has actually taken place." Thayer v. 
 Thayer, 101 Mass. 113; State v. Bridgman, 49 Vt. 210; People v. 
 Edwards, 73 Pac. 416; Lamphere v. State, 114 Wis. 193. 
 
 A conviction of adultery may be based upon evidence of an 
 adulterous disposition between the parties, and that they were 
 together when they had an opportunity. Monteith v. State, 114 
 Wis. 828 ; State v. Brink, 68 Vt. 659. 
 
 And an adulterous disposition was established by evidence of 
 prior and subsequent intercourse. State v. Moore (Iowa), 88 
 N. W. 322 ; State v. Snover, 65 N. J. L. 289 ; Crane v. People, 
 168 111. 395. But see People v. Fowler, 104 Mich. 449. 
 
 An information for adultery charged a single act of adultery in a 
 single court. Held^ that, having given evidence of one such act, 
 the State could not proceed to show other instances of the same 
 crime committed with the same person at other times and places. 
 State V. Bates, 10 Conn. 373. 
 
 Previous Illegal Sales of Liquors. 
 
 In a prosecution for keeping liquors with intent to sell the same, 
 the State offered evidence of sales made by the defendant before 
 the date of the alleged offence. Hehl^ that it was admissible on the 
 question of intent, although other prosecutions for such sales were 
 pending against him. State v. Raymond, 24 Conn. 206. 
 
 A is charged with illegally keeping liquors for sale. The fact 
 that nearly three months prior to the complaint and seizure in 
 question A had been convicted, on a plea of nolo contendere, of 
 illegally keeping liquors, is relevant to show intent. State v. 
 Plunkett, 64 Me. 534.
 
 1547 
 
 * AMERICAN NOTES. 
 
 Abortion. 
 
 To prove intent, where the defendant is charged with i)rociiring 
 an abortion, he may be shown to liave operated in the same way 
 on other occasions. Com. v. Hohnes, 103 Mass. 440; Com. z-. 
 Corkin, 136 Mass. 429. 
 
 In a prosecution for causing abortion, proof as to the character 
 of the house where it occurred is admissible. Hays v. State, 40 
 Md. 633. 
 
 Evidence of a subsequent attempt to cause an abortion by dif- 
 ferent means is admissible to show intent on the fust occasion. 
 Lamb v. State, 66 Md. 285. 
 
 Cotispiracy. 
 
 Proof of a combination or conspiracy for a criminal purpose is 
 not often made by direct, open, and i)ositive evidence, but more 
 generally and more naturally by proving a repetition of acts of a 
 character conducing to show a mutual purpose. In such cases it 
 is seldom true that any one act, taken by itself, can be detected as 
 tending to prove a combination, but when it is seen in connection 
 with other acts, its true nature may be discovered. State v. 
 Spaulding, 19 Conn. 237. See also Stalker v. State, 9 Conn. 341. 
 
 Arso7i. 
 
 Other attempts to fire the same building are admissible to nega- 
 tive accident or negligence. Com. v. McCarthy, 119 Mass. 355 ; 
 Com. V. Bradford, 126 Mass. 42. 
 
 A is accused of setting fire to his house in order to obtain money 
 for which it is insured. The fact that A had previously lived in 
 two other houses successively, each of which he insured, in each of 
 which a fire occurred, and that after each of those fires A received 
 payment from a different insurance office, are deemed to be rele- 
 vant, as tending to show that the fires were not accidental. R. v. 
 Gray (1866), 4 F. & F. 1102. 
 
 " I acted on this case in R. v. Stanley, Liverpool Summer Assizes, 
 1882, but I greatly doubt its authority. The objection to the 
 admission of such evidence is that it may practically involve the 
 trial of several distinct charges at once, as it would be hard to 
 exclude evidence to show that other fires were accidental." 
 Stephen's Dig. Evid. Art. 12.
 
 AMERICAN NOTES. 154'^* 
 
 To show that defendant was guilty of arson, it was proved that 
 when arrested he referred to the arson before he was charged with 
 it. Meeks v. State (Ga.), 30 S. E. 252. 
 
 Defendants were shown to be guilty of arson by prior threats 
 
 and by the fact that they removed their property from the building 
 
 shortly before the fire. People v. Smith, 55 N. Y. Supp. 932, 162 
 
 N. Y. 520. 
 
 Poisoning Cases. 
 
 Where the defendant is charged with murder by poisoning, other 
 attempts to kill or to poison the deceased, and other murders by 
 poisoning, may be proved to show intent and to negative mistake. 
 State V. Smith, 102 Iowa, 656; Zoldoske v. State, 82 Wis. 580; 
 People V. Thacker, 108 Mich. 652 ; Com. v. Robinson, 146 Mass. 
 
 571- 
 
 The question is, whether the administration of poison to A, by 
 Z, his wife, in September, 1848, was accidental or intentional. 
 The facts that B, C, and D (A's three sons) had the same poison 
 administered to them in December, 1848, March, 1849, and April, 
 1849, and that the meals of all four were prepared by Z, are deemed 
 to be relevant, though Z was indicted separately for murdering A, 
 B, and C, and attempting to murder D. R. v. Geering (1849), 
 18 L. J. M. C. 215 ; Stephen's Dig. Evid. Art. 12, 
 
 " If a person were charged with having wilfully poisoned another, 
 and it were a question whether he knew a certain white powder to 
 be poison, evidence would be admissible to show that he knew 
 what the powder was, because he had administered it to another 
 person who had died." R. v. Dossett, 2 C. & K. 307. 
 
 Where one is accused of killing another, though not by poison, 
 it may be shown that he purchased poison and took it to the house 
 of the deceased. Such evidence is relevant as showing an inten- 
 tion to murder. Mobley v. State, 41 Fla. 621. 
 
 Actions for Crim. Con. 
 
 In action for crim. con. the defendant may be asked on cross- 
 examination as to intercourse with plaintiffs wife prior to her 
 marriage. Foulks v. Archer, 31 N. J. L. 58. 
 
 In action for crim. con., after giving evidence of adultery prior 
 to separation subsequent adultery may be proved. Sherwood v. 
 Titman, 55 Pa. 77.
 
 154/* AMERICAN NOTES. 
 
 Existence of System to Show Intent or Motive. 
 
 System of selling liquor by seeming to give it away admitted to 
 prove intent. Archer v. State, 45 Md. n- 
 
 The defendant, charged with murder, was shown to have pre- 
 tended to be a medium and to have induced the deceased to wear 
 a belt with gold coins in it to develop power, and that the defend- 
 ant had worked a similar game on others and secured this gold by 
 dexterous fingers. People v. Archer (Mich.), 86 N. W. 140. 
 
 Proof of otlier embezzlement to show system and fraudulent 
 intent. People v. Hawkins, 106 Mich. 479 ; Com. v. Tuckerman, 
 10 Gray, 173. 
 
 Prior Attempts. 
 
 To prove an assault with intent to kill, the intent may be shown 
 by evidence of prior attempts (State v. Merkley, 74 Iowa, 695 ; 
 Lawrence 7'. State, 84 Ala. 424; Stater. Nugent, 71 Mo. 136), 
 even though the attempt was made in a different manner (State 
 V. Patza, 3 La. Ann. 512), and so an attempt to murder may be 
 shown by proof of prior attempts. State v. Nugent, 71 Mo. 136 ; 
 People V. Jones, 99 N. Y. 667 ; Nicholas v. Com., 91 Va. 741. 
 
 It is competent for the State to prove previous assaults by the 
 defendant upon the deceased, or previous attempts to take his life, 
 though not by the same means. Painter v. People, 147 111. 444 ; 
 Williams v. State, 64 Md. 384 ; Com. v. Crossmire, 156 Pa. 304. 
 
 On trial of defendant for the murder of an officer, it may be 
 shown that he had already tried to kill another officer who was 
 trying to arrest him, to show intention to kill any officer making 
 such an attempt. People v. Coughlin, 13 Utah, 58. 
 
 On trial for murder of a wife by setting fire to her dress, it may 
 be shown that defendant at another time set fire to her dress. 
 Com. V. Birriolo, 197 Pa. 371. 
 
 Prepai-ations a7id Opportu7iify for. the Co7nviissio7i of C7-i7)ie. 
 
 Preparation. — Acts of preparation may be pro\'ed. Com. v. 
 Choate, 105 Mass. 451; Com. v. Blair, 126 Mass. 40; Com. 
 V. Robinson, 146 Mass. 571, 16 N. E. 452 ; People v. Hope, 62 
 Cal. 291 ; Spies v. People, 122 111. i ; McManus v. Com., 91 Pa. 
 
 57-
 
 AMERICAN NOTES. I 54 W* 
 
 Statements in preparation for an act are admissible with proof of 
 the act. Hunter v. State, 40 N. J. L. 538. 
 
 A proposition made by defendant to take an unfrequented path 
 is admissible as showing preparation to commit a crime ; it may be 
 shown also that defendant had a pistol. Garlitz v. State, 71 Md. 
 
 293- 
 
 To prove defendant guilty of adultery, it may be shown that he 
 
 procured anotlier to find out if the woman's husband was at home. 
 State V. Green, Kirby (Conn.), 89. 
 
 It may be shown that the defendant borrowed a knife just before 
 the act in which that knife was used, to show preparation. Finch 
 V. State, 81 Ala. 41. 
 
 Where defendant was accused of stabbing another it was shown 
 that he had a knife sharpened prior to the act and had inquired as 
 to the location of the heart. Walsh v. People, 88 N. Y. 462. 
 
 J Possessiofi of Instruments. 
 
 Where the defendant was charged with arson, and it was shown 
 that the fire in question had been started by means of an ingenious 
 and peculiarly constructed fire-box, evidence was admitted to show 
 that the defendant had had in his possession prior thereto a sim- 
 ilar box used for a similar purpose, " to show that he possessed the 
 requisite skill, materials, tools, and opportunity'' to have made the 
 box in question. Com. v. Choate, 105 Mass. 451. 
 
 Homicide Cases. 
 
 The defendant may be shown to have armed himself with a 
 knife on the morning of the homicide to show his intent. Walsh 
 V. People, 88 N. Y. 458. 
 
 Where deceased was killed by a stab in the heart, the defend- 
 ant may be shown to have had a knife, although no one saw the 
 knife at the time of the homicide. People v. Rogers, 18 N. Y. 9. 
 
 It may be shown that the defendant borrowed a knife in prep- 
 aration for expected trouble, when he was charged with killing 
 deceased with a knife. Finch v. State, 81 Ala. 41. 
 
 The defendant, accused of homicide, may be shown to have 
 purchased a gun and bullets for the purpose of shooting the 
 deceased. Moon v. State, 68 Ga. 6S7 ; Young v. Com. (Ky.), 29
 
 154 «* AMERICAN NOTES. 
 
 S. W. 334 ; State v. Doherty, 72 Vt. 381 ; State v. Rider, 95 Mo. 
 474 ; People v. Scott, 153 N. Y. 40. 
 
 To prove that the defendant was guilty of murder, it may be 
 shown that he purchased a gun and practised shooting before the 
 act was committed. Boiling v. State, 54 Ark. 588. People v. 
 McGuire, 135 N. Y. 639. 
 
 The defendant may be shown to have had a weapon with which 
 certain wounds could have been inflicted. People v. McDowell, 
 64 Cal. 467 ; Merrick v. State, 63 Ind. 327 ; State v. McKinney, 
 31 Kan. 570. 
 
 That the accused obtained the instruments with wliich the crime 
 was committed may be jjroved. Com. v. Roach, 108 Mass. 289; 
 Com. V. Blair, 126 Mass. 40. 
 
 To prove the accused guilty of sinking a boat, it may be shown 
 that he had an auger fitting a hole made in the bottom of the 
 boat. Nicholas v. Com., 91 Va. 741. 
 
 Possession of Poison. 
 
 The defendant, charged with poisoning his wife, may be shown 
 to have obtained arsenic to kill rats, and that when asked where he 
 got it he replied, " It is none of your business."' State v. Hinkle, 
 6 Iowa, 380. 
 
 Where defendant is charged with mixing arsenic with food, the 
 previous purchase and possession of arsenic may be proved. 
 Com. V. Hobbs, 140 Mass. 443. And so where the defendant is 
 charged with murder by strychnine poisoning. State v. Cole, 94 
 N. C. 958. 
 
 Burglar's Tools. 
 
 Where defendant was shown to have had possession of goods 
 taken during a burglary, and claimed to have bought them, the 
 State may show that he had burglar's tools in his possession, though 
 it was a month after the crime. Williams v. People, 196 111. 173. 
 
 Possession by the defendant several months before a safe-break- 
 ing of percussion caps such as were used in the crime, may be 
 proved. State v. Wayne, 62 Kan. 636. 
 
 Where chloroform was used in a burglary, it may be shown that 
 the defendant possessed chloroform. Miller v. State (Tex.), 50 
 S. W. 704.
 
 AMERICAN NOTES. 154^* 
 
 Prior possession of burglar's tools is admissible as a fact to show 
 that the defendant committed a burglary. State v. Franks, 64 
 Iowa, 39 ; State v. Wayne, 62 Kan. 636. 
 
 Insiruvienis to Produce Abortion. 
 
 Where a defendant was accused of procuring an abortion, it 
 was allowed to be shown that he had instruments that could be 
 used for that })urpose. Com. v. Brown, 121 Mass. 71 ; People v. 
 Sessions, 58 Mich. 594. 
 
 Instruments to Commit Arson, 
 
 Possession of a jug which was used in setting fire to a building 
 with oil is admissible. Thomas v. State, 107 Ala. 13. 
 
 Where a fire was started with oil put into auger holes, the State 
 may show that there was a brace in the house to show that accused 
 had the means at hand. People v. Bishop, 134 Cal. 682. 
 
 Where one was accused of arson, it was allowed to be shown 
 that the defentlant had in his possession a box with inflammable 
 materials and a candle, and that the fire in question was set with a 
 similar box and candle. Com. v. Choate, 105 Mass. 451. 
 
 Instruments Used in Forgery and Coufiter/eiting. 
 
 To prove alteration of a check, it may be shown that defend- 
 ant had materials which would remove ink. People v. Brother- 
 ton, 47 Cal. 402. 
 
 Possession of tools used for forging banknotes is admissible. 
 R. V. Ball, I Camp. 324. 
 
 To prove the defendant guilty of counterfeiting, it maybe shown 
 that he had instruments adapted to the business. U. S. v. Burns, 
 5 McLean, 2^. 
 
 Opportunity. 
 
 There can be no doubt that opportunity to commit a crime, or 
 the mere physical presence of the accused in the neighborhood, is 
 relevant to show that he may be the guilty party. He may of 
 course show that others had equal opportunity. Proof of oppor- 
 tunity would, unsupported, have very little weight. 
 
 In State 7'. Wentworth, 37 N. H. 196, where defendants were 
 accused of putting stones upon a railroad track, it was allowed to 
 be shown that they had within two hours, and not far away, placed
 
 154/'* AMERICAN NOTES. 
 
 ron rails on the track, for the purpose of showing that tlicy had 
 the opportunity of doing the act charged. 
 
 One charged with homicide may be shown to have known of 
 a letter received by the deceased, calling him past the. place where 
 he was killed ; and to prove such knowledge on the part of the de- 
 fendant, his conversations since the crime are admissible. State 
 V. Seymour, 94 Iowa, 699. 
 
 It may be shown that the defendant had an opportunity to com- 
 mit the crime in question, and it need not be shown that the de- 
 fendant was the only person having such opportunity. Terr. v. 
 DeGutman (New Mex.), 42 Pac. 68. 
 
 The defendant was shown to have had access at all times to a 
 bakery adjoining premises where a burglary was committed, and it 
 was proved by marks on the window that a screw-driver belonging 
 in the bakery had been used to open a window in a partition be- 
 tween the two rooms. State v. Marshall (Iowa), 74 N. W. 763. 
 
 Burglary of watches. Defendant was shown to have known 
 where the watches were kept. State v. Fitzgerald, 72 Vt. 142. 
 
 Presence at the Place of a Crime. 
 
 Mere presence of a person at the scene of a crime is not alone 
 sufificient as a basis for the inference that he assented to its com- 
 mission. State V. Maloy, 44 Iowa, 104. 
 
 One may be convicted of a crime upon circumstantial evidence, 
 though there is no proof that he was seen near the place of its 
 commission. People v. Flynn, 73 Cal. 511. 
 
 The defendant's presence in the vicinity of the crime, his oppor- 
 tunity of knowing when the deceased was to leave a certain place, 
 and the fact that the defendant was not customarily in that vicinity, 
 though not to be given much weight, are admissible links in a chain 
 of circumstantial evidence. Campbell v. State, 23 Ala. 44. 
 
 Defendant was shown to have been present at the time of the 
 crime, and that the instrument (a broadaxe) with which the mur- 
 der was committed was in the house prior thereto. Cicely v. State, 
 13 Smedes & M- (Miss.) 203. 
 
 Strength and Ability to Commit the Crime. 
 
 The defendant may be shown to have had a peculiar grip whereby 
 he could "shut anybody's wind off," when the marks on the de-
 
 AMERICAN NOTES. 154^* 
 
 ceased could have been made by such a grip. Com, -'. Crossmire, 
 156 Pa. 304. 
 
 The relative strength of the parties to a struggle may be shown, 
 but only by evidence of a general character and not by proof of 
 specific acts, particularly acts in themselves likely to prejudice the 
 defendant. Wellar v. People, 30 Mich. 16. 
 
 The deceased may be shown to have been old and feeble, while 
 the defendant is young and strong. Davidson v. State, 135 Ind. 
 
 254- 
 
 Where one is charged with strangling another, evidence that 
 after the crime he showed how he could kill by strangling is admis- 
 sible. Moore v. State, 2 Ohio St. 500. 
 
 Evidence that defendant had a loaded revolver proves that he 
 had the " present ability " to do the act threatened. State v. 
 Sheerin, 12 Mont. 539. 
 
 The physical strength of the accused is admissible to show that 
 he would have been able to do the act. Thiede v. Utah, 1 1 Utah, 
 241, 139 U. S. 510; State V. Gushing, 17 Wash. 544. 
 
 To rebut the claim of self-defence the State may show that the 
 deceased was small and weak and nearly blind. State v. Goddard, 
 162 Mo. 198. 
 
 To show that the defendant had capacity and opportunity to 
 put two large stones on a railroad track, it may be shown that he 
 very shortly before put iron rails on the track nearby. State v. 
 Wentworth, 37 N. H. 196. 
 
 Ability and Skill of the Defendant. 
 
 Where the defendant was charged with election frauds con- 
 nected with registration lists, it may be shown that the defendant 
 was in conspiracy with others to do the acts charged, and that the 
 defendant, because of his position and control of patronage, was 
 able to influence and to coerce the others involved. People v. 
 McKane, 143 N. Y. 455. 
 
 One charged to have procured goods on credit with intent to 
 defraud may be shown to have had such credit in the community 
 as to have made it possible for him to obtain the credit in question. 
 Gom. V. Eastman, 55 Mass. (i Gush.) 189. 
 
 In Webster's trial it was shown that the body of Doctor Parkman 
 had been dissected in a professional manner, and that the defend-
 
 154^* AMERICAN NOTES. 
 
 ant was a professor in a medical school, to assist in identifying him 
 as the murderer. Com. r. Webster, 5 Cush. 295. 
 
 Similar evidc-nce was held admissil)lc in People ?'. Durrant, 116 
 Cal. I 79. 
 
 Where the defendant is charged with altering a check, it may be 
 proved tiiat there is a fluid with which writing may be removed, 
 and that the defendant is expert in its use. People v. Dole, i2r 
 Cal. 492, 68 Am. St. Rep. 50. 
 
 But in State v. Hopkins, 50 Vt. 316, where the defendant was 
 accused of forgery, it was held improper to show that he had skill 
 in imitating the signatures of others. 
 
 Knowledge of Drugs. 
 
 One charged with procuring an abortion may be shown to have 
 had knowledge of the drugs actually used in the case, and to have 
 advertised that he was able to produce miscarriages. Weed v. 
 People, 56 N. Y. 62S. 
 
 That the defendant made inquiries as to the use of drugs in pro- 
 curing an abortion is admissible on the question of his having 
 procured one. Jackson v. Com., 100 Ky. 239. 
 
 Knowledge of Weapons. 
 
 Where a boy of twelve was accused of shooting another, evidence 
 is admissible to show his knowledge and experience as to firearms. 
 State V. McDonald, 14 R. I. 270. 
 
 Preparatiojis and Predictio7is of Death. 
 
 In Nicholas v. Com., 91 Va. 741, where defendant was charged 
 with causing deceased's death by drowning, he had made a prior 
 attempt to poison the deceased, and had predicted the latter's sud- 
 den death from heart disease. There were three large holes bored 
 in the bottom of the boat where the defendant sat, and they were 
 the size of an auger possessed by the defendant. He had invited 
 the deceased to accompany him across the river to rob a bee tree, 
 knowing that the deceased could not swim. 
 
 On a trial for the murder of X, it was shown that one Y had 
 previously been killed, and the defendant remarked that the one 
 who had killed Y intended to kill X also. People v. Evans, 41 
 Pac. 444 (Cal ).
 
 AMERICAN NOTES. ' 154-?* 
 
 Predictions of a Fire. 
 
 Defendant had predicted that all of L's buildings would burn, 
 and proof was admitted that the dwelling had been set on fire to show 
 that defendant had burned the barn. State v. Hallock (Vt.), 40 
 Atl.si. 
 
 A prediction that a third person was about to set fire to certain 
 buildings was admitted to prove that defendant committed arson. 
 State V. Gailor, 71 N. C. 88. 
 
 Receiit Possession of the Fruits of Crime. 
 
 Possession to Prove Larceny. — Possession of stolen goods is 
 admissible as a fact tending to show that the possessor stole them. 
 " The law is that if, recently after the commission of the crime, a 
 person is found in possession of the stolen goods, that person is 
 called upon to account for the possession, — that is, to give an ex- 
 planation of it which is not unreasonable or improbable. The 
 strength of the presumption which arises from such possession is 
 in proportion to the shortness of the interval which has elapsed. 
 If the interval has been only an hour or two, not half a day, the 
 presumption is so strong that it almost amounts to proof, because 
 the reasonable inference is that the person must have stolen the 
 property." R. v. Exall, 4 F. & Y. 922. 
 
 Where there has been a larceny of money, it may be shown that 
 the accused had possession of certain specific pieces, if they can 
 be identified, or that after the crime he had plenty of money while 
 before he had none. Com. v. Mulrey, 170 Mass. 103; Boston 
 & W. R. R. Co. V. Dana, i Gray, loi ; State v. Grebe, 17 Kan. 
 458 ; Gates v. People, 14 111. 433. 
 
 The possession of a bottle of brandy admitted as evidence of 
 an intention to steal it. People v. Griswold, 64 Mich. 722. 
 
 Where the defendant is charged with larceny of a beef, it may 
 be shown that certain bones were dug up on his premises appear- 
 ing to be the bones of an animal about the size of the one stolen. 
 Foster v. State, 56 S. W. (Tex.) 58. 
 
 Possession of a Part Only. 
 
 A conviction may be had without showing that all the property 
 stolen was traced to the possession of the defendant. If it is shown
 
 154^* AMERICAN NOTES. 
 
 tliat he liad in his possession even a very small portion of tlie 
 stolen goods, this, in connection with otiicr evidence, may convict 
 him of having taken all. State v. Owens, 79 Mo. 619; Knicker- 
 bocker T. People, 43 N. Y. 177. 
 
 OtJicr Property Stolen at Same Time. 
 
 Possession of other property stolen at the same time as that 
 alleged in the indictment may be i)roved. State v. Wrand (Iowa), 
 78 N. W. 788. 
 
 To Prove Burglary. 
 
 Possession of recently stolen goods as evidence of burglary. 
 Considine v. U. S., 112 Fed. 342 ; Boersh v. State (Tex.), 62 S. VV. 
 1060; People V. Brady, 133 Cal. xx, 65 Pac. 823; State v. Ryan 
 (Iowa), 85 N. W. 812 ; Holland v. State, 112 Ga. 540; Cook v. 
 State (Miss.), 28 So. 833; Robertson v. State (Fla.), 24 So. 474; 
 Jones V. State (Ga.), 31 S. E. 574; People v. Sears, 119 Cal. 267 ; 
 State V. Dale, 141 Mo. 284. 
 
 Mere possession of the goods held insufificient to establish that 
 the defendant committed a burglary unless the breaking and enter- 
 ing are also proved. Lester v. State (Ga.), 32 S. E. 335. But it 
 may be sufficient to identify the defendant as the one who did 
 break and enter. Hunter v. Com. (Ky.), 48 S. W. 1077. 
 
 To prove burglary, it was shown that defendant had possession 
 of some of the stolen property three days after the crime. State v. 
 Armstrong, 170 Mo. 406. 
 
 A joint possession of goods stolen by several defendants may 
 be proved to show that they committed burglary. Robertson v. 
 State (Fla.), 24 So. 474. 
 
 Possession of a key fitting the lock in the house entered, and 
 defendant's attempt to throw it away, are evidence of the com- 
 mission of burglary. Holland v. State, 112 Ga. 540. 
 
 To Prove Robbery and Murder. 
 
 Possession of money of the same kind and denomination to show 
 robbery. Musser v. State (Ind.), 61 N. E. i. 
 
 Where a man was killed to effect robbery, it may be shown that 
 the defendant had money when arrested, even though the money 
 is not identified as having belonged to the deceased. Chapman 
 V. State (Tex.), 65 S. W. 1098.
 
 AMERICAN NOTES. 154'^'' 
 
 " Possession of the fruits of crime," held to have great weight 
 in proving a murder, where a murder and a robbery were committed 
 at llie same time. WiUiams v. Com., 29 Pa. 102. 
 
 To Prove Murder. 
 
 In the case of People v. Durrant, 116 Cal. 179, where the de- 
 fendant was charged with the murder of a young lady, it was shown 
 that lie had attempted to sell to a pawnbroker a certain ring that 
 had been worn by the deceased, and that later this ring and others, 
 likewise belonging to the girl, came by mail to the girl's aunt, 
 wrapped in a paper bearing names written in the defendant's 
 handwriting. 
 
 It may be shown that prior to a murder tlie defendant had 
 been unable to pay a debt of §16, but the next day ])aid debts of 
 $116, in all, and that the deceased had when killed more than 
 $100. Schneider v. State, 2 Ohio Cir. Ct. R. 420. 
 
 The fact that the defendant pawned a watch and also disposed 
 of certain clothing, all of which had belonged to the deceased, was 
 admitted to prove the defendant guilty of murder in Terr. v. 
 Bryson, 9 Mont. 32. 
 
 In State v. Jackson, 95 Mo. 623, the defendant was shown to 
 have been out of money and in search of work, while the deceased 
 had money. After the time of the murder the defendant ceased 
 to hunt work and had plenty of money. 
 
 To convict the defendant of murder, he was shown to have 
 been in the company of the deceased after the latter had just 
 completed some remunerative work, that later he was alone driv- 
 ing two teams owned by the deceased, one being hitched ahead 
 of the other by means of a rope instead of the usual chain. He 
 also had several hundred dollars in his possession. He told a 
 story of having bought the teams of the deceased and then de- 
 parted. The body of deceased was found in a river where they 
 had been, with the wagon chain wound about the neck and mortal 
 wounds on the body. The evidence was held sufficient to sustain 
 a conviction. State v. Foster, 91 Iowa, 164. 
 
 To connect defendant with a murder, it was shown that the de- 
 ceased had sold cattle prior to the murder, and that after the 
 event the defendant spent much money the possession of which he 
 did not account for. Lancaster v. State, 36 Tex. Cr. R. 16.
 
 154'^* AMERICAN NOTES. 
 
 The defendant may be shown to have had the murdered man's 
 wagon, clothing, pocket-book, and other property, after the crime. 
 State V. Gartrell, 171 Mo. 489. 
 
 The State may show that certain property of the deceased was 
 found in the trunk of the defendant who was accused of the mur- 
 der. Morris v. State, 30 Tex. App. 95. 
 
 Possession of two watches previously carried by the deceased 
 admitted as evidence that defendant was guilty of the homicide. 
 Lindsay v. People, 67 Barb. 548, afifirmed 63 N. Y. 143. 
 
 It may be show'n that the defendant had no money prior to the 
 date of a liomicide, and that afterwards he had money similar in 
 kind and amount to that in the former jjosscssion of the deceased. 
 Gates V. People, 14 111. 433 ; State v. Davis, 87 N. C 514 (coins 
 of an early date). 
 
 In Betts V. State, 66 Ga. 508, it was shown that the deceased 
 had had four $20 bills and some other paper money, and that tiie 
 defendant, charged with murder, attempted to conceal such bills 
 and other money. 
 
 To prove that the defendant was guilty of homicide, it was shown 
 that the deceased had two gold bars, that the defendant was just 
 out of prison and had no money, and that he sold two gold bars 
 shortly after the event. It was not shown that the gold bars were 
 the same, but the defendant was convicted. People v. Collins, 
 64 Cal. 293. 
 
 Fossession May Make a Priina Facie Case. 
 
 Recent possession of the stolen goods, when unexplained, has 
 been held sufficient to warrant a conviction. Lehman v. State, 
 18 Tex. Crim. 174; Roberts v. State, 17 Tex. Crim. 82. But in 
 State V. Reese, 27 W. Va. 375, unexplained possession was held 
 not to make out a prima facie case. The contrary has frequently 
 been held. Smith v. People, 103 111. 82 ; Comfort v. People, 
 54 111. 404; State V. Jennings, 81 Mo. 165 ; State v. Kennedy, 
 88 Mo. 341. 
 
 The bare fact of possession is generally said to be insufficient 
 evidence upon which to convict, but with other circumstances of 
 suspicion it may make 6ut vi. prima facie case. People v. Antonio, 
 27 Cal. 404; Moreno v. State, 24 Tex. Crim. 401. 
 
 Two men, charged with the murder of an express messenger,
 
 AMERICAN NOTES. I54t£/* 
 
 $2 1,000 having been stolen from the car, were shown to have had 
 great sums of money after the crime, some $50 and $100 bills 
 being itlentified. Their only explanation was that they had re- 
 ceived money from relatives, and they were convicted. Watt v. 
 People, 126 111. 9, I L. R. A. 403. 
 
 Possession of a sack of malt within an hour after a burglary, and 
 failure to explain such possession, held sufficient to convict. 
 People V. Joy (Cal.), 66 Pac. 964. 
 
 It is sufficient evidence to sustain a conviction for larceny that 
 defendant was found skinning another s hog, newly killed, and that 
 when discovered he ran away (Walker zj. State, 3 Tex. App. 70) ; 
 or that defendant was discovered with a box of tobacco and ran 
 with it until caught. Carreker v. State, 92 Gx. 47 [. 
 
 Possession Raises a Presumption of Fact. 
 
 The presumption arising from possession of stolen goods is gen- 
 erally held to be one of fact, to be drawn by the jury alone from the 
 circumstances of the case. Smith v. State, 58 Ind. 341 ; Snow- 
 den 7'. State, 62 Miss. 100; Lockhart v. State, 29 Tex. Crim. 35 ; 
 Dillon V. People, i Hun, 670: State v. Richart, 57 Iowa, 245; 
 State V. Hodge, 50 N. H. 510; Graves v. State, 12 Wis. 591. 
 But in State v. Kelly, 73 Mo. 60S, the presumption is said to be 
 one of law. 
 
 Possession by Another than the Defendant. 
 
 Defendant was accused of burglary, and with C escaped from 
 jail. Later C was found in possession of property stolen at the 
 place of the burglary, at which time he himself was in jail. His 
 possession was admitted as evidence against defendant. Riding 
 V. State (Tex.), 50 S. W. 69S. 
 
 Possession by the defendant's son of the hide of a heifer alleged 
 to have been stolen, and the selling of fresh meat by the defendant, 
 were admitted to show that defendant stole the heifer. Brown v. 
 State, 34 Tex. Cr. R. 150, 29 S. W. 772. 
 
 Leftgth of Time Elapsed. 
 
 The fact that the defendant had possession of goods stolen may 
 be proved, notwithstanding the length of time elapsed, that cir- 
 cumstance affecting the weight and not the competency. Lindsay
 
 154-^'* AMERICAN NOTES. 
 
 7'. People, 63 N. Y. 243; State r-. Rights, 82 N. C. 675 ; Mooncr 
 7'. State, 24 Tex. Crim. 401. 
 
 Wlicre the goods found in the possession of tlie defendant are 
 of a sort easily transferred from iiand to hand, as banknotes, the 
 presumption may be very weak, even though the time be short 
 (Warren 7'. State, i Iowa, 106; Snowden z: State, 62 Miss. 100; 
 Slate 7: Castor, 93 Mo. 242); while if the property be bulky and 
 unusual in nature, as a statue, the presumption woukl be strong, 
 though the time be long. 
 
 Wheu one is found in possession of stolen goods, the presump- 
 tion to be drawn therefrom is strong or weak in proportion to the 
 length of time elapsed since the crime. White v. State, 72 Ala. 
 195 ; Gabbick ?'. People, 40 Mich. 292 ; Slate 7'. Floyd, 15 Mo. 
 349 ; State v. While, 89 N. C. 462 ; Pollard v. State (Tex.), 26 
 S. W. 70. 
 
 False Explanations. 
 
 An improbable or false explanation of the possession of stolen 
 goods strengthens the presumption of guilt; and so, also, if the 
 defendant gives conflicting explanations (Enbanks v. State, 82 Ga. 
 62; State z/. Rodman, 62 Ga. 456; State v. En, 10 Nev. 277 ; 
 Towle V. Slate, 47 Wis. 545) ; as when the defendant claims he 
 bought them at auction and there has been no auction. State 
 v. Donovan (Mo.), 26 S. W. 340. 
 
 The fact that the defendant made several explanations as to his 
 possession of property is admissible to prove he stole the property. 
 State V. En., 10 Nev. 277. 
 
 Unexplained Appearances of Suspicion and False Explanations 
 
 of Them. 
 
 Personal Appearance of Accused. 
 
 The appearance of the accused after a homicide, and that he 
 looked terror-stricken and wild, may be proved (Cottell v. State, 
 5 Circ. Dec. (Ohio) 472, 12 Ohio Circ. Ct. 467); so his em- 
 barrassment may be shown. Moore v. State, 2 Ohio St. 500. 
 
 There were scratches on the person of the defendant, and he 
 accounted for them by saying that he had been put off of a certain 
 train. It was proved that no one had been put off of that train. 
 State V. Lucey (Mont.), 61 Pac. 994.
 
 AMERICAN NOTES. 1 54 J* 
 
 Appearance of Clothing. 
 
 It may be shown that defendant's shirt was found wet with 
 sweat, where he is charged with murder, and if guilty, he must have 
 run home three miles. Baines v. State (Tex.), 66 S. W. 847. 
 
 Where one is accused of setting a fire with kerosene, it may be 
 shown that there were kerosene stains on his shirt. State v. Kings- 
 bury, 58 Me. 238. 
 
 Where the defendant was charged with murder and robbery, it 
 was shown that some time after the murder he had pawned jewels 
 belonging to the deceased, and told various untrue stories as to 
 how he got them. He shaved his moustache shortly after the 
 murder, and a suit of his clothes was found with blood on them. 
 He was convicted. People v. Neufeld, 165 N. Y. 43. 
 
 Suspicious Conduct. 
 
 Where the accused was charged with causing the death of 
 deceased by drowning, it was shown that he refused to assist in the 
 investigation of the drowning until threatened with arrest, and 
 otherwise behaved suspiciously. Nicholas v. Com., 91 Va. 741. 
 
 Recently Fired Gun. 
 
 A shotgun found in the defendant's house showed that one 
 barrel had been recently discharged. Wlien asked where he was 
 when it was fired, he said " in bed." But it was shown that there 
 were no traces whatever of a shot having been fired in his room. 
 Williams v. State (Ark.), 16 S. W. 816. 
 
 Failure to Explain Suspicious Circumstances. 
 
 " Where probable proof is brought of a state of facts tending to 
 criminate the accused, the absence of evidence tending to a con- 
 trary conclusion is to be considered, — though not alone entitled 
 to much weight, because the burden of proof lies on the accuser 
 to make out the whole case by substantive evidence. But whea 
 pretty stringent proof of circumstances is produced, tending to 
 support the charge, and it is apparent that the accused is so sit- 
 uated that he could offer evidence of all the facts and circum- 
 stances, as they existed, and show, if such was the truth, that the 
 suspicious circumstances can be accounted for consistently with
 
 1 54-* AMERICAN NOTES. 
 
 his innocence, and he fails to offer such proof, the natural conclu- 
 sion is, that the proof, if produced, instead of rebutting, would 
 tend to sustain the charge. But this is to be cautiously applied, 
 and only in cases where it is manifest that proofs are in the power 
 of the accused, not accessible to the prosecution." Com. z'. Web- 
 ster, 5 Cush. 295, 316. 
 
 "There is an absence of all effort on the part of the prisoner to 
 explain two circumstances in the early part of the transaction 
 which have some bearing in the case. The first is the failure to 
 show where he was, from the time he crossed the river until he 
 overtook Sandifer and Riddle at sunset. 'I'he other is, that he did 
 not show whether he went to Newsom's to supper, as he said he 
 intended to do. These are considerations of great force against 
 him." McCann v. State. 13 Smedes & M. (Miss.) 471, 493. 
 
 False Explanations. 
 
 Misrepresentation of the facts and concealment were held suffi- 
 cient to convict the defendant of an attempt to murder with a 
 bomb, where the bomb had exploded and wounded the defendant 
 himself, in Jambor v. Slate, 75 Wis. 664. 
 
 Contradictory stories shown to be false, as to what two defend- 
 ants had done with a certain child, convicted them both of murder. 
 And V. State, 36 Tex. Cr. R. 76. 
 
 False statements as to what defendant did with his child are 
 admissible to prove its murder. Com. v. Johnson, 162 Pa. 63. 
 
 It was shown in the case of People v. Sliney, 137 N. Y. 570, that 
 the deceased was killed in his butcher shop with a cleaver. The 
 defendant was seen there shortly before, holding a cleaver. The 
 deceased's boy had been induced to leave by a forged note- from 
 a priest, written in red ink. The defendant had red ink stains on 
 his hands. At one time he admitted writing the note, and at an- 
 other time he denied it. At one time he admitted killing the de- 
 ceased in self-defence, and at another time accused the brother of 
 the deceased with the crime. The brother was shown to have 
 been elsewhere at the time. The verdict was murder in the first 
 
 degree. 
 
 False Explanations of Blood Stains. 
 
 Where the defendant explained certain blood stains on his person 
 by saying that it was blood from a squirrel he had dressed, the
 
 AMERICAN NOTES. 154^** 
 
 prosecution showed that tlie squirrel in question had been given 
 to him already dressed. Brown v. State, 32 Tex. Cr. R. 1 19. 
 
 False Explanations in Larceny. 
 
 Where defendant had packed up certain goods of his employer 
 and sent them by express to another city, and gave false explana- 
 tions of his doing so, and it was shown that he had shipped other 
 boxes in a similar manner, he was properly convicted of larceny. 
 May V. State, 38 Neb. 211. 
 
 The defendant was convicted of the larceny of a hog on evi- 
 dences of a bloody trail to accused's yard, a pool of blood there 
 covered up, hair from a hog about the premises partly concealed, 
 and the defendant's false explanation that the hair came from a 
 chimney. Harris v. State, 62 Ga. 337. 
 
 Contradictory stories to explain the possession of a stolen dress 
 suit and a silk doily. Williams v. People, ig6 111. 173. 
 
 This Evidence to be Carefully Scrutinized. 
 
 That suspicious conduct is to be scrutinized with care is shown 
 in the case of Miller v. Terr., 3 Wash. T. 554, 19 Pac. 50. The 
 defendant was an ignorant man, and was charged with murder. 
 A motive, quite inadequate, existed. When arrested, he dis- 
 played agitation, and he appeared much moved wlien taken by 
 the sheriff to the spot where the murder occurred. He was 
 brought before the dead bodies and asked by the sheriff, " How 
 do you feel in the presence of the evidence of your hellish crime ? " 
 He breathed deeply, looked away, and said nothing. A con- 
 viction was set aside because a well-established alibi showed it to 
 have been practically impossible for him to have been on the spot 
 when the killing was done. 
 
 Ignorance of the Defendant to be Considered. 
 
 '• In cases depending upon indirect testimony, where the facts 
 or circumstances established by direct proof point strongly to the 
 guilt of the accused, his relation of the occurrence is frequently a 
 matter of great importance. His statement, if true, may explain 
 facts of a doubtful character, which otherwise would tend strongly 
 to the conclusion of his guilt, and if it be reasonable and consistent 
 in itself, should always have weight with the jury. On the other
 
 I54<5** AMERICAN NOTES. 
 
 hand, if it be unreasonable or contradictory and proved to be' 
 false, it must, upon acknowledged jjrinciples, increase the presump- 
 tion of his guilt. 
 
 *' In the case at bar, the evidence, strong if not conclusive, de- 
 rives great weight from the strange account which she gave of 
 the occurrence from the contradictory statements, and from the 
 fact that her relation, in part at least, is proved to be false. Ig- 
 norant or weak-minded persons, innocent of the charge, when 
 opposed by circumstances that question their iimoccnce, not 
 knowing that a true account of the matter would be their surest 
 protection, frequently resort to prevarication and falsehood with 
 a hope of delivery. But in the case under examination there is 
 good reason to believe that the false and contradictory state- 
 ments of the prisoner were the result of the guilt in which she was 
 involved." Cicely v. State, 13 Smedes & M. (Miss.) 203, 223. 
 
 Weight of Indirect Confessional FA'idence. 
 
 In the case of McCann v. State, 13 Smedes & M. (Miss.) 471, 
 the proof was entirely circumstantial, and by far the greater part of 
 it consisted of the indirect confessional evidence furnished by the 
 prisoner himself. After reviewing all the other evidence, the 
 Court says : '' These are the circumstances as developed up to 
 the time of the killing, and however much they point to the guilt 
 of the prisoner, they may leave room for a reasonable doubt. But 
 the evidence does not close here. By far the strongest portion 
 has been furnished by the conduct and declarations of the prisoner, 
 subsequent to the deed." 
 
 Words and Actions Jndicatifig Guilty Consciousness. 
 
 Where the defendant was charged with the murder of a woman 
 by strangling her on September i 7th, it was allowed to be shown 
 that on the iSth he was met by the sheriff, who had called the 
 day before to serve a subpoena in chancery on the defendant, 
 and that the following conversation occurred. The defendant 
 said to the witness, " You were at my house yesterday — I was 
 not at home." To which the witness replied, " No, but I found 
 the woman." Whereupon defendant's countenance changed, he 
 blushed, became embarrassed, and asked, " What did you say?" 
 Moore v. State, 2 Ohio St. 500, 504.
 
 AMERICAN NOTES. 154'^'* 
 
 Cojifessions may be Implied from Conduct. 
 
 Conkey v. People, i Abb. App. Dec. 418 ; People v. O'Neil, 
 49 Hun, 422, 17 N. Y. St. R. 956, 112 N. Y. 355; Greenleaf 
 V. People, 85 N. Y. 75, 39 Am. Rep. 636. 
 
 Or from the act of a third person done in the presence of the 
 accused. Hochreiter v. People, 2 Abb. App. Dec. 363. 
 
 The making of false statements after the alleged act, which 
 would tend to give a wrong impression concerning the connec- 
 tion of the one sought to be held accountable with the act, may 
 be shown. State v. Reed, 62 Me. 129 ; State v. Benner, 64 Me. 
 267 ; Com. V. Webster, 5 Cush. (Mass.) 316, 52 Am. Dec. 711 ; 
 Com. V. Trefethen, 157 Mass. 180, 31 N. E. 961, 24 L. R. A. 
 235 ; State v. Reed, 62 Me. 129. 
 
 Willingness or unwillingness to be searched may be shown. 
 Riley v. Gourley, 9 Conn. 161. 
 
 Where defendant was pursued and charged with picking a 
 pocket, he denied the charge, but thrust a different purse upon 
 the owner of the one taken, a $10 bill upon her daughter, and 
 then ran away. This evidence was held sufficient to sustain a 
 conviction. People v. Howard, 50 Mich. 390. 
 
 A witness may testify that the defendant dodged, trembled, and 
 became confused when met by the witness before the time of the 
 arrest. Beavers v. State, 58 Ind. 530. 
 
 It may be proved in evidence that the defendant showed signs 
 of trepidation when tracks leading from the scene of a murder 
 toward defendant's house were compared with the feet of various 
 bystanders. In point of fact they were found to correspond with 
 the defendant's shoes. Wade v. State, 65 Ga. 756; Russell z'. 
 Com., 78 Va. 400. 
 
 In State v. Brown, 168 Mo. 449, it was shown that the defend- 
 ant objected to having his shoes measured. 
 
 Mental Preoccupation. 
 
 A clerk, charged with a crime, may be shown to have been much 
 preoccupied and absent-minded after the crime and to have made 
 many mistakes. Noftsinger v. State, 7 Tex. App. 301.
 
 154^^** AMERICAN NOTES. 
 
 Conduct ii.ihcn Arrested. 
 
 The demeanor of tlie defendant at the time he was arrested may 
 be proved. Levison v. State, 54 Ala. 519. 
 
 Resistance to arrest inchcates guilt, and may be proved. Pro- 
 basco V. Cook, 39 Mich. 717 ; People v. Flannelly, 128 Cal. 83 ; 
 Anderson v. State, 147 Iml. 445. 
 
 Conduct at the time of his arrest is admissiljle against tlie de- 
 fendant charged with murder, although he was actually being ar- 
 rested for burglary, provided the defendant did not know for which 
 crime he was being arrested. People v. Higgins (Mich.j, 86 N. \V. 
 812. 
 
 Defendant was accused of killing a marshal, who had arrested 
 him, in Cameron, Mo. He was arrested in Kansas, refused to 
 leave without requisition, said he had never been in Missouri, was 
 much alarmed at his arrest, and asked if he was arrested for killing 
 the marshal. This evidence was of great weight, because the 
 identity of the murderer was doubtful. State v. Cushenferry 
 (Mo.), 56 S. W. 737. 
 
 Denial of Identity. 
 
 The defendant may be shown to have denied his name when 
 arrested (State v. Van Winkle, So Iowa, 15 ; McCann v. State, 13 
 Smedes & M. (Miss.) 471) ; and he may be shown to have been 
 living under an assumed name. State v. Whitson, 11 1 N. C. 695. 
 
 Conduct during Trial. 
 
 The defendant's demeanor during the trial may be used as 
 evidence of his guilt or innocence. " We know it to be a fact, 
 grounded in human nature, that the conduct of a defendant or of 
 a party to a suit during the trial is more or less potential, and has 
 necessarily more or less influence with the Court and jury upon 
 the question of his credibility." Boykin v. People, 22 Colo. 496. 
 
 Attempts to Comproniise. 
 
 It may be shown that the defendant proposed to compromise 
 the case, when so made as to indicate consciousness of guilt 
 (Barr z'. People, 113 111. 471 (rape); State v. Rodriges, 45 La. 
 Ann. 1 040 (larceny) ; McMaih v. State, 55 Ga. 303; U. S. v.
 
 AMERICAN NOTES, 154^** 
 
 Hunter, Fed. Cas. 15424) ; as that he should take a whipping in 
 heu of other punishment. State v. De Berry, 92 N. C. 800. 
 
 Feigning Insanity. 
 
 It may be shown tliat the defendant intentionally acted in such 
 a manner as to indicate insanity. Basham v. Com., 87 Ky. 440. 
 
 Evading Arrest. 
 
 It is competent to show that the accused attempted to evade 
 the officers. People v. Taylor, 3 N. Y. Cr. 297. 
 
 It may be shown that the defendant disguised himself and hid, 
 under an assumed name, and denied his identity. People v. VVin- 
 throp, 118 Cal. 85. 
 
 It is also permissible to show that the defendant concealed him- 
 self to avoid arrest, or that he attempted to escape or actually 
 escaped after arrest. People v. Winthrop, 118 Cal. 85; Hitner 
 V. State, 19 Ind. 48; State v. Rodman, 62 Iowa, 456; State v. 
 Williams, 54 Mo. 170. 
 
 Hiding or flight after the act, to avoid arrest, may be proved. 
 Com. V. Annis, 15 Gray (Mass.), 197 ; Com. v. Tolliver, 119 Mass. 
 312 ; Corn. v. Brigham, 147 Mass. 414. 
 
 In Ryan v. People, 79 N. Y. 60 1, the Court says: "The evi- 
 dence that the defendant made an effort to keep out of the way of 
 the sheriff was very slight, if any, evidence of guilt. There are so 
 many reasons for such conduct consistent with innocence that it 
 scarcely comes up to the standard of evidence tending to establish 
 guilt ; but this and similar evidence has been allowed upon the 
 theory that the jury will give it such weight as it deserves, 
 depending upon surrounding circumstances." 
 
 Although the defendant may be shown to have changed his 
 residence to avoid arrest, letters written to him and found on his 
 person advising him to change his residence are not admissible. 
 People V. Lee Dick Lung, 129 Cal. 491. 
 
 Flight. 
 
 Instances where the flight of the accused was used as evidence 
 of his guilt. Starr v. U. S., 164 U. S. 227 ; Com. v. Tolliver, 119 
 Mass. 315; State v. Frederic, 69 Me. 400; Burris v. State, 38
 
 154/** AMERICAN NOTES. 
 
 Ark. 221 ; Com. v. Hoschino, 176 I'a. 103; Com. v. McMahon, 
 145 Pa. 413. 
 
 " A (light is universally admitted as evidence of the guilt of the 
 accused, tliough not conclusive. If we take a flight as evidence of 
 fear, and fear as evidence of a known cause of dread or apprehen- 
 sion, we arrive thus at the inference of crime. But it is sufficient 
 ])erhaps for all practical purposes to regard a flight as immediate 
 evidence of crime, because it betrays conscious guilt. In this 
 instance, then, we take the flight, a thing of itself harmless and 
 innocent, as evidence of conscious guilt, a necessary consequence 
 of the crime itself, and the conscious guilt, of which the flight was 
 evidence, is proof in its turn of the crime. ... Is flight the only 
 outward evidence of conscious guilt? So far from it, any indica- 
 tions of it, arising from the conduct, demeanor, or expressions of 
 the party, are legal evidence against him." Johnson v. State, 17 
 Ala. 618. 
 
 The flight and resistance to arrest of the defendant may be 
 proved, even though the defendant merely pleaded self-defence. 
 People V. FIannelly,i28 Cal. 83. 
 
 Flight and an attempt to sell the borrowed rifle with which a 
 homicide had been done are admissible in evidence. People v. 
 Sullivan, 129 Cal. 557. 
 
 Where the defendant was charged with murder, there was evi- 
 dence that he had told certain parties that he had killed a man 
 and needed money to travel on ; that he had received money and 
 fled, and was a fugitive until his arrest. Washington v. State, ig 
 Tex. App. 521, 53 Am. Rep. 387. 
 
 It may be shown that the defendant was under contract and 
 was intending to begin work on a certain date, but that imme- 
 diately after the crime in question was committed he left the 
 neighborhood. Welsh v. State, 97 Ala. i. 
 
 " A consciousness of innocence would have led him to abide 
 the issue, and to see whether time would not disclose the real 
 perpetrator. But he fled on the instant, and he must be content 
 to bear whatever weight this circumstance furnishes against him. 
 The consequences of his own act must fall on his own head. He 
 was on his way before two o'clock of that day. The jury of 
 inquest did not return their verdict until ten o'clock of that night ; 
 and up to that time, no whisper had been heard that he was
 
 AMERICAN NOTES. 154^** 
 
 accused or suspecteil. His fears induced flight before the voice 
 of accusation was raised.'' McCann v. State, 13 Smedes & M. 
 (Miss.) 471, 495. 
 
 Preparation to Fly. 
 
 A telegram from the defendant offering to sell certain horses 
 may be admitted with other circumstances as showing his prepa- 
 ration for immediate flight. State v. Espinozei, 20 Nev. 209. 
 
 The defendant may be shown to have prepared to fly before he 
 committed the crime charged, by hiring a horse and -buggy to 
 leave the neighborhood that night. Teague v. State, 120 Ala. 309, 
 316. 
 
 Flight of Accomplice. 
 
 The defendant may be shown to have supplied the means for 
 the flight of an alleged accomplice. Jones v. State, 64 Ind. 473 ; 
 State V. Hudson, 50 Iowa, 157. 
 
 Weight of Evidence in Case of Flight. 
 
 " The breaking out of jail and escape of one under indictment 
 for crime may arise from conscious guilt and the fear of trial 
 therefor, and the dread of the punishment to follow ; or it may be 
 that the defendant, conscious of innocence, may dread trial lest he 
 be convicted ; or, again, with such consciousness of innocence, 
 being confined in prison and unable to give bail, he would seek 
 freedom in flight from the discomforts of such imprisonment. 
 Different individuals might act differently under the same circum- 
 stances, owing to the difference in their minds, dispositions, and 
 characters. Whether or not the motive for such an escape has its 
 origin in the consciousness of guilt and the dread of being brought 
 to justice, or whether it can be explahied and attributed to some 
 other innocent motive, are questions for the determination of the 
 jury, under all the evidence in the cause. Of itself, such evidence 
 would not warrant conviction, but it is relevant, and the weight to 
 which it is entitled is for the jury under proper instructions from 
 the Court." Elmore v. State, 98 Ala. 12, 13 So. 427. 
 
 The defendant's immediate flight after a murder, with proof that 
 he had threatened the deceased and that he was present at the 
 time of the shooting, is sufficient for conviction. Com. v. Sal- 
 yards, 158 Pa. 501.
 
 154/^** AMERICAN NOTES. 
 
 Flii^ht, Instructions to Jury. 
 
 The following instruction has been held proper: "The flight of 
 a prisoner suspected of crime is a circumstance to be weighed by 
 the jury as tending in some degree to prove a consciousness of 
 guilt, and is entitled to more or less weight according to the cir- 
 cumstances of the particular case. . . . If you believe he did flee, 
 upon the ])ursuit of the officers, that is a circumstance before you, 
 along with the balance of the testimony in the case, the signifi- 
 cance or insignificance of which is to be judged by you." reoi)!e 
 V. Ross, 115 Cal. 233, 235. 
 
 It is error to quote the Bible, in instructing the jury, to the effect 
 that the wicked flee and the righteous do not, and to add : " That 
 is a self-evident proposition that has been recognized so often by 
 mankind that we can take it as an axiom and apply it to this case." 
 Hickory v. U. S., 160 U. S. 40S, 422. 
 
 In Alberty v. U. S., 162 U. S. 499, 509, it was held to be error 
 to instruct the jury " that from the fact of absconding the jury 
 might infer the fact of guilt, and that flight was a silent admission 
 by the defendant that he was unwilling or unable to face the case 
 against him, and was in some sense, feeble or strong, as the case 
 might be, a confession." 
 
 But the following instruction was held correct in Allen v. U. S., 
 164 U. S. 492, 498. " Now, then, you consider his conduct at 
 the time of the killing and his conduct afterwards. If he fled, if 
 he left the country, if he sought to avoid arrest, that is a fact that 
 you are to take into consideration against him, because the law 
 says unless it is satisfactorily explained, — and he may explain it 
 upon some theory, and you are to say whether there is any effort 
 to explain it in this case, — if it is unexplained the law says it is a 
 fact that may be taken into account against the party charged 
 with the crime of murder upon the theory that I have named, upon 
 the existence of this monitor called conscience that teaches to 
 know whether we have done right or wrong in a given case." 
 
 Forfeiting Bail. 
 
 It may be shown that the defendant gave ''straw bail," and at 
 once forfeited it, and that he passed under a number of aliases. 
 Barron v. People, 73 111. 256.
 
 AMERICAN NOTES. I 54/** 
 
 Attempted Escape from Prison. 
 
 In Gannon v. People, 127 111. 507, the defendant, charged 
 with drowning his stepson, was shown to have expected to be 
 accused with the crime before any accusation was made, and to 
 have escaped twice with great desperation after his arrest. 
 
 Attempted escape of the defendant may be proved. State v. 
 Morgan (Utah), 61 Pac. 527. 
 
 It may be shown that the defendant attempted to procure tools 
 with which to break jail. State v. Jackson, 95 ]\Io. 623. 
 
 Mental Emotion. 
 
 " In the olden time it was a popular superstition that the corpse 
 of the slain would bleed afresh if touched by the murderer ; and it 
 was deemed almost conclusive of guilt that he who was charged 
 with the murder refused to lay his finger on the body or to take his 
 hand ; in recent years, persons suspected of murder have been 
 required to touch the dead body, not because the old superstition 
 was indulged, but that its effect on them — the emotion produced 
 and manifested — could be observed." Gassenheimer z^ State, 52 
 ^la. 316. 
 
 Grief. 
 
 It may be shown whether the defendant, charged with the 
 murder of her sister, exhibited grief over her sister's death, but the 
 evidence of the State must be restricted to manifestations within 
 a reasonable time after the death, and four months is too long a 
 ime. State v. Baldwin, 36 Kan. i. 
 
 Implied Admission of Giiilt. 
 
 When the defendant was asked by an officer why he had killed 
 his wife, he replied that he and not the officer would have to suffer 
 for it. This was admissible in evidence. Synon v. People, x8S 
 111. 609. 
 
 " His conduct at Carrollton is not easy to reconcile with a 
 belief of his innocence. He exhibited great fear of being arrested ; 
 put his hand upon his pistol, and threw himself into a defensive 
 attitude, when a stranger entered the room in which he was. He 
 then stated the fact of the killing, and of the finding of the body
 
 1547*** AMKRICAN NOTES. 
 
 eaten up in part by tlie hogs, and saul he had left, because lie was 
 the last person seen beliind the old man, near Cross's Lane, before 
 he was killed, and that it would be hard for him to jjrove himself 
 clear. This ileclaration is decisive of his fate. It brings him to 
 the very theatre of the murder, at the time it was committed, antl 
 if he did not do the deed himself, it is almost certain that he would 
 have seen the person who did. He might then have saved him- 
 self by disclosing the real murderer. How did he know that he 
 was the last person seen behind the old man before he was killed, 
 unless he was the real murderer himself?" McCann v. State, 13 
 Smedes & M. (Miss.) 471, 496. 
 
 DniiikcJi Admissions. 
 
 Statements made by the prisoner before his arrest to the effect 
 that he had committed the crime charged, are admissible notwith- 
 standing the fact that he was drunk when he made the statements, 
 and he claims they were mere boastful talk and idle vaporings in a 
 yarn-telling contest. Horn v. State (VVyo.), 73 Pac. 705. 
 
 Silence as an Implied Confession. 
 
 Keeping silence under certain circumstances may be an implied 
 confession (Sparf v. U. S., 156 U. S. 57; Com. v. McCabe, 
 163 Mass. 98; Richards v. State, 82 Wis. 172), even when 
 under arrest. Murphy v. State, 36 Ohio St. 628 ; Ackerson v. 
 People, 124 111. 563; contra., State v. Howard, 102 Mo. 142; 
 Com. V. McDermott, 123 Mass. 440. 
 
 There must, however, be an opportunity to speak. Hence, no 
 implication is to be drawn from silence at a coroner's inquest. 
 People V. Willett, 92 N. Y. 29. 
 
 " So also, silence, unless it be accounted for by some of the 
 circumstances which have been specified, or by other sufficient 
 reason, may be taken as a tacit admission of the fact stated ; 
 because a person, knowing the truth or falsity of a statement 
 affecting his right, made by another in his presence, under circum- 
 stances calling for a reply, will naturally deny it, if he be at liberty 
 to do so, if he does not intend to admit it." Donnelly v. State, 
 26 N. J. L. 601, 613. 
 
 A confession may be implied from silence when one is charged
 
 AMERICAN NOTES. 154/^** 
 
 with a crime under circumstances justifying the expectation of a 
 reply. Ettinger v. Com., 98 Pa. 338. 
 
 " The rule is that a statement made in the presence of a defend- 
 ant, to which no reply is made, is not admissible against him, 
 unless it appears that he was at liberty to make a reply, and that 
 the statement was made by such person and under such circum- 
 stances as naturally to call for a rei)ly unless he intends to admit 
 it. But if he makes a reply, wholly or partially admitting the 
 truth of the facts stated, both the statement and the reply are 
 competent evidence." Com. v. Brown, 121 Mass. 69, 80. 
 
 " To a remark that it was strange he had fled before he was 
 accused, he made no reply." This the Court regards as evidence 
 against the defendant. McCann v. State, 13 Smedes & M. 
 (Miss.) 497. 
 
 Silence — when no Implication is Proper. 
 
 " If it appeared that it was made in the course of a judicial 
 inquiry, or when circumstances existed which rendered a reply 
 inexpedient or improper, or that fear, doubts of his rights, or a 
 belief that his security would be better promoted by silence than 
 by a response, governed him at the time, then the testimony 
 should not have been admitted ; for the reason that the jury in 
 such case ought not to have been allowed to infer anything 
 against the prisoner from his silence." Donnelly v. State, 26 
 N. J. L. 6or, 612. 
 
 The silence of the defendant when a witness made statements 
 prejudicial to him on a former trial cannot be used as the basis 
 of an inference against him, as it would not have been proper for 
 him to be otherwise than silent. Broyles v. State, 47 Ind. 251. 
 
 The silence of an accused at a judicial inquiry into his guilt in 
 the face of an accusation against him is no evidence of his guilt. 
 Com V. Zorambo, 205 Pa. 109. 
 
 The defendant's silence in the face of accusations was held not 
 to justify an inference against him where he showed that he had 
 induced a friend to go with him to see his accusers on his prom- 
 ise not to lose his temper and to be upon his good behavior. 
 Slattery v. People, 76 111. 217. 
 
 " If a defendant is charged with crime, and unequivocally 
 denies it, and this is the whole conversation, it cannot be intro-
 
 154^** AMERICAN NOTES. 
 
 dnced in evidence against him as an admission." Fitz. v. 
 \\illiams, 14S Mass. 462. 
 
 Convcrsatiom in the Presence of ilie Accused. 
 
 Such conversations may be admissible against liie defendant. 
 State V. Brown, 64 N. J. L. 414. 
 
 "A conversation in the presence of an accused, and in i)art of 
 which he participated, is admissible in evidence as a whole. 
 Where a conversation involving statements tending to charge 
 the accused with a crime takes place in his presence, and he 
 remains silent, when the circumstances are such as to make it 
 natural for him to speak, such conversation is competent evidence." 
 Conway v. State, 118 Ind. 282, 21 N. E. 285. 
 
 Explanations of Apparent Admissions. 
 
 "If any part of a conversation with the defendant put in 
 evidence tends to show directly or indirectly that he is guilty 
 of the crime charged, the defendant has the right to have put in 
 evidence all that was said to and by him at the same time, and 
 relating to the same subject, although it is in his favor." Com. v. 
 Keyes, 11 Gray, 323. 
 
 Facts explaining or quahfying a confession or which indicate its 
 falsity are admissible. People v. Fox, 121 N. Y. 449. 
 
 Suppression, Destruction, Fabrication, and Simulation 
 of Evidence. 
 
 " To the same head may be referred all attempts on the part of 
 the accused to suppress evidence, to suggest false and deceptive 
 explanations, and to cast suspicion, without just cause, on other 
 persons, all or any of which tend somewhat to prove conscious- 
 ness of guilt, and, when proved, to exert an influence against 
 the accused. But this consideration is not to be pressed too 
 urgently ; because an innocent man, when placed by circum- 
 stances in a condition of suspicion and danger, may resort to (ie- 
 ception in the hope of avoiding the force of such proofs." Com. 
 V. Webster, 5 Cush. 295, 316. 
 
 Suppression of Evidence. 
 It may be shown that the accused concealed property illegally
 
 AMERICAN NOTES. 154;;^** 
 
 obtained or illegally sold. State v. Bruce, 24 Me. 72 ; Com. v. 
 Wallace, 123 Mass. 400; Com. v. Welch, 163 Mass. 372. 
 
 It may be shown that the accused commanded his wife to tell 
 nothing. Liles v. State, 30 Ala. 24. 
 
 The motives of a third party who induced a witness for the 
 State to leave the State for a bribe are not admissible. Chelton v. 
 State, 45 Md. 560. 
 
 Failure to produce evidence is not necessarily suppression 
 thereof. McCabe v. Com. (Pa.), 8 Ad. 45. 
 
 Intimidaiion of Witnesses. 
 
 Where defendant was charged with arson, it was shown that 
 he tried to intimidate certain witnesses against him. State v. 
 Millmeier (Iowa), 72 N. W. 275. 
 
 Bribing Witnesses. 
 
 It is competent to show that an agent of a party employed to 
 collect testimony and interview witnesses has resorted to bribery 
 even though he was not expressly authorized to employ such 
 means. Nowack v. Metropolitan St. Ry. Co., 166 N. Y. 433, 
 60 N. E. 32, reversing 66 N. Y. Supp. 533. 
 
 Evidence of bribery, wliile admissible, is not conclusive. It is 
 proper to warn the jury not to give undue importance to such 
 testimony. Nowack '■. Metropolitan St. Ry. Co., 166 N. Y. 433, 
 60 N. E. 32, reversing 66 N. Y. Supp. 533. 
 
 It may be shown that the defendant tried to bribe the officer 
 arresting him. Com. v. Wallace, 123 Mass. 400. 
 
 Influencing Witnesses. 
 
 Where the defendant was charged with rape, a note written by 
 him to the prosecutrix urging her to deny everything, to keep her 
 promise, and not to write or say anything about the transaction, 
 was held admissible in evidence. State v. Mahoney (Mont.), 61 
 Pac. 647. 
 
 In People v. Burt, 64 N, Y. Supp. 417, 51 App. Div. 106, it 
 was shown that the defendant, charged with murder, had attempted 
 to get the one who sold him a revolver to keep still, to influence 
 the testimony of other witnesses, and to manufacture a false alibi.
 
 I 54'' AMERICAN NOTES. 
 
 Attempts on the part of the defendant to influence witnesses or 
 jurors are admissible in evidence. People ?'. Mason, 29 Mich. 31. 
 
 Bribing of Jurors. 
 
 It may be shown that the defendant attempted to bribe a juror. 
 State V. Case, 93 N. C. 545, 53 Am. Rep. 471. 
 
 Attempts to Divert Suspicion. 
 
 In Com. V. Webster, 5 Cush. 295, evidence was allowed to show 
 that the defendant had written with a pine stick having a wad of 
 cotton on one end, three anonymous letters to the city marshal for 
 the purpose of diverting suspicion away from the real scene of the 
 murder. 
 
 " Under this rule, every circumstance relied npon as material is 
 to be brought to the test of strict i)roof ; and great care is to be 
 taken in guarding against feigned and pretended circumstances, 
 which may be designedly contrived and arranged, so as to create or 
 divert suspicion and prevent the discovery of the truth. These, 
 by care and vigilance, may generally be detected, because things 
 are so ordered by Providence, — events and their incidents are so 
 combined and linked together, — that real occurrences leave behind 
 them vestiges, by which, if carefully followed, the true character of 
 the occurrences themselves may be discovered. A familiar instance 
 is, where a person has been slain by the hands of others, and cir- 
 cumstances are so arranged as to make it appear that the deceased 
 committed suicide. In a case recorded as having actually occurred, 
 the print of a bloody hand was discovered on the deceased. On 
 examination, however, it was the print of a left hand upon the left 
 hand of the deceased." Com. v. Webster, 5 Cush. 295, 318. 
 
 It may be proved that to account for the absence of the deceased, 
 alleged to have been murdered, the defendant spread reports that 
 he had stolen a horse and gone to Texas. Lancaster v. State, 91 
 Tenn. 267. 
 
 In State v. Tettaton, 159 Mo. 354, where the defendant was 
 charged with shooting his stepmother and her four children, and 
 then burning the house and their bodies, he was found pretending 
 to be unconscious in the yard with wounds inflicted by himself 
 with his bloody knife found near by, although he claimed the 
 wounds had been inflicted by two robbers.
 
 AMERICAN NOTES. 154^** 
 
 111 Butler 7'. State (Ark.), 63 S. W. 46, where defendant was 
 charged with the murder of his daughter with an axe, he made an 
 elaborate attempt to indicate the presence of another man in the 
 house. When called immediately after the murder, he pretended 
 to leap out of his bed, he seized his gun and fired at a supposed 
 escaping man in the yard, and he had previously thrown the bloody 
 axe into the yard. 
 
 Destruction of Evidence. 
 
 Voluntary destruction of an instrument raises a presumption that 
 it was unfavorable to the party doing the act. Jones 7a Knauss, 
 31 N. J. Eq. 609. 
 
 It may be shown that the defendant burned the building entered, 
 to conceal his burglary. Robertson v. State (Fla.), 24 So. 474. 
 
 Hasty Intennent of Body. 
 
 In State v. Edmonson. 131 Mo. 348, the defendant, charged 
 with causing the death of a girl pregnant by him, by procuring an 
 abortion, was shown to have urged her immediate burial. 
 
 Contradictory Statements. 
 
 Attention of jury may be called to contradictory statements of 
 a prisoner in relation to the crime. Cathcart v. Com. 37 Pa. 108. 
 
 In Baines v. State (Tex.), 66 S. W. 847, the defendant intro- 
 duced evidence of an alibi, and the State proved his statements 
 after his arrest to the effect that he had been alone at his home. 
 
 Contradictory and improbable statements by the accused as to 
 an attack by a band of five robbers who killed all the members of 
 the family while she alone escaped, such statements being shown 
 to be false. Cicely v. State, 13 Smedes & M. (Miss.) 203. 
 
 False or Evasive Testitnony. 
 
 Falsehood and evasion by the accused are proper evidence upon 
 the question of his guilt or innocence. People v. Conroy, 97 N. Y. 
 62, 80, 2 N. Y. Cr. 565, 33 Hun, 119. 
 
 In Fuller v. State, 109 Ga. 809, the defendant was shown to 
 have denied all knowledge of the crime at first and to have 
 testified later that a co-defendant committed the murder in his 
 presence.
 
 154/'** AMERICAN NOTES. 
 
 Tlic (lefendant may be shown to have denied, at the time of his 
 arrrst. that he had been near the scene of the crime for three 
 months, while at the trial he does not deny being there. State v. 
 Hudson (Iowa), 80 N. W. 232. 
 
 In People v. Driscoll, 107 N. Y. 414, the defendant, charged 
 with murder, claimed that the shooting was done by one M. 
 Deceased had been shot in M's house and defendant was outside. 
 But the State proved that the defendant and the deceased had 
 gone to M"s house to kill him, that deceased got inside, but defend- 
 ant failed, and that defendant then fired through the door. The 
 deceased at first said M killed her, but later said it was the 
 defendant. M fled, but returned and gave up his pistol, fully 
 loaded, with no sign of a recent discharge. The defendant denied 
 having been at M's house at all. He was convicted of murder. 
 
 Where the defendant claimed that the deceased fired at him 
 first, the State proved that the deceased had no gun, that four shots 
 were fired, and that four chambers of defendant's revolver were 
 empty. Clark v. Com., 90 Va. 360. 
 
 False Claim of Accident set up at Trial for First Time. 
 
 Where defendant claimed that the shooting was an accident, his 
 testimony was much weakened by proof that at the time of the 
 shooting, and in conversation with witnesses afterwards, he had said 
 nothing about its being accidental. Foster v. State, 74 Tenn. 213. 
 And in State v, Sterrett, 80 Iowa, 609, where a similar claim of 
 accident was made at the trial, it was shown that defendant had 
 formerly said that he shot deceased because of the latter's abuse. 
 
 Fabricating Evidence. 
 
 That one has attempted to fabricate evidence for the purposes 
 of defence may be shown (People v. Bassford, 3 N. Y. Cr. 219; 
 McMeen v. Com., 114 Pa. 300; State v. Williams, 27 Vt. 226; 
 Lyons v. Lawrence, 12 111. App. 53; Heslop v. Heslop, 82 Pa. 
 537) ; and efforts to secure the absence of witnesses (State v. 
 Barron, 37 Vt. 57 ; State v. Nocton, 121 Mo. 537) ; and attempts 
 to bribe a juror (Hastings v. Stetson, 130 Mass. 76; Taylor v. 
 Oilman, 60 N. H. 506) ; or to escape justice. State v. Frederic, 
 69 Me. 400; State v. Palmer, 60 N. H. 216, 20 Atl. 6; Hickory 
 V. U. S., 160 U. S. 408.
 
 *» 
 
 AMERICAN NOTES. 154(7 
 
 The following instruction was held proper : " You will under- 
 stand that your first duty in the case is to reject all evidence that 
 you may find to be false ; all evidence that you may find to be 
 fabricated, because it is worthless ; and if it is purposely and in- 
 tentionally Invoked by the defendant it is evidence against him ; 
 it is the basis for a presumption against him, because the law says 
 that he who resorts to perjury, he who resorts to subornation of 
 perjury to accomplish an end, this is against him, and you may 
 take such action as the basis of a presumption of guilt." Allen v. 
 U. S., 164 U. S. 492, 498. 
 
 Where defendant was charged with wife murder, his attempt 
 to prove an alibi was overthrown by convincing evidence; and a 
 letter that he produced, purporting to be from his wife, confessing 
 her infidelity and indicating that she would commit suicide, was 
 shown by the State not to be in the wife's handwriting. People z: 
 Hamilton, 137 N. Y. 531. 
 
 "The fabrication of an alibi, like the wilful introduction of false 
 and fabricated evidence in support of any other ground of defence, 
 is a circumstance against the accused." White v. State, 31 Ind. 
 262. 
 
 False Alibi. 
 
 In People v. Durrant, 116 Cal. 179, where the defendant was 
 charged with the murder of a girl in a church at 3 p. m., he alleged 
 that at that time he was attending a lecture on the sterilization of 
 milk at a Medical College where he was a student, and he pro- 
 duced his original notes of the lecture in corroboration of his 
 statement. But the State showed that he had, after his arrest, 
 secretly called in a fellow student and told him that he had no 
 such notes and needed them to support his alibi, and that the fel- 
 low student thereupon promised to lend him his, proposing two 
 methods by which the defendant could get them into his note- 
 book. 
 
 Where defendants accused of murder set up an alibi, the pros- 
 ecution may explain the presence of the accused at the distant 
 place by proof that they rode away on horses belonging to a cer- 
 tain person who found his horses and saddles gone. Com. v. 
 Roddy, 184 Pa. 274, 
 
 In State v. Howard, 118 Mo. 127, the defendant, charged with 
 murder, attempted to prove an alibi, but his witnesses were im-
 
 154'** AMERICAN NOTES. 
 
 peaclied and the testimony as to his having been near the scene 
 of the crime was convincing. 
 
 Failure to Explain Suspicious CircumstaJiccs. 
 
 " The instinct of self-preservation impels one in peril of the pen- 
 itentiary to produce whatever testimony he may have to deliver 
 him from such peril. Every man will do what he can to shield 
 himself from the disgrace of a conviction of crime, and the burden 
 of punishment. We all know this. We all expect it. Whenever, 
 then, a fact is shown which tends to prove crime upon a defendant, 
 and any explanation of such fact is in the nature of the case 
 peculiarly within his knowledge and reach, a failure to offer an ex- 
 planation must tend to create a belief that none exists. Will not 
 a man, who can, explain that which unexplained will stamp him a 
 criminal and consign him to the felon's cell? The criminal law 
 furnishes in its rules more than one illustration of this principle. 
 The possession of recently stolen property casts upon the pos- 
 sessor the duty of explaining such possession. Why? Because 
 the fact and manner of acquiring that possession are peculiarly 
 within his knowledge and reach, and the instinct of self-preser- 
 vation will compel him to give an explanation thereof consistent 
 with his innocence, if any such explanation exists." State v. 
 Grebe, 17 Kan. 458. 
 
 Failure to Call Witnesses. 
 
 The failure of the accused to produce witnesses accessible to 
 him may be considered as tending to strengthen the evidence 
 given against him. People v. Grimshaw, 33 Hun, 505, 510, 
 2 N. Y. Cr. 390. 
 
 Evidence to account for the absence of a witness may be intro- 
 duced, as, for instance, that he is under arrest. Pease v. Smith, 
 5 Lans. 519, 61 N. Y. 477. 
 
 For limitations of the rule, see Ward v. St. Vincent's Hospital, 
 72 N. Y. Supp. 587. 
 
 Where a party takes every step to compel the attendance of the 
 witness, his failure to appear is not to be considered as affecting 
 his case. Judgment (1S95), 35 N. Y. Supp. 325, 89 Hun, 449, 
 affirmed; Manhattan Life Ins. Co. z/. Alexander, 53 N. E. 1127, 
 158 N. Y. 732.
 
 AMERICAN NOTES. 1 54 J-** 
 
 No presumption as to what a witness's testimony would be from 
 failure to call him. Com. v. McMahon, 145 Pa. 413. 
 
 Failure to call an alleged paramour to testify, although within 
 easy reach, is significant of guilt. Bibby v. Bibby, 2>Z N. J. Eq. 
 
 56. 
 
 In Georgia the statute creates a presumption that a charge is 
 well founded if the party fails to introduce evidence in his power, 
 or introduces inferior evidence when he could have produced 
 better. Code 1S95, § 5163, Cr. C. § 989. 
 
 Failure to Testify. 
 
 Failure of an accused to become a witness may be considered 
 by the jury. Parker v. State, 61 N. J. L. 308. 
 
 The failure of a party to appear and testify may be considered, 
 and such failure may be explained on his part by showing circum- 
 stances which prevented him from giving his evidence. Brown v. 
 Barse, 10 App, Div. 444, 42 N. Y. Supp. 306. 
 
 The non-attendance of the plaintiff who has personal knowledge 
 of the transaction to appear and testify on the trial is a circum- 
 stance to be considered by the jury. Brooks v. Steen, 6 Hun, 
 516. 
 
 Failure to Testify. 
 
 Failure to testify when accused of fraud raises a presumption 
 against one. Dawson v. Waltemeyer, 91 Md. 328. 
 
 The prosecuting attorney may comment to the jury on the 
 failure of the accused to deny as a witness the allegations of the 
 State. Brashears v. State, 58 Md. 563. 
 
 Scientific Testimony. 
 
 "When there is a question as to any point of science or art, the 
 opinions upon that point of persons specially skilled in any such 
 matter are deemed to be relevant facts. Such persons are herein- 
 after called experts. The words 'science or art' include all sub- 
 jects on which a course of special study or experience is necessary 
 to the formation of an opinion, and amongst others the examination 
 of handwriting." Stephen's Dig. Evid., Art. 49.
 
 154^** AMERICAN NOTES. 
 
 Qiialifuaiion of Experts. 
 
 In State 7'. Hinkle, 6 Iowa, 380, two physicians were allowed to 
 testify as to tests they made upon tlie stomach of the deceased, 
 for the detection of poison, even though they both atlmitted tliat 
 they were not practical chemists and were inexperienced in de- 
 tecting poisons. After admitting that tiie testimony should be 
 given less weight, the Court says : " But to say that none shall be 
 permitted to give their opinions, except those of the highest pro- 
 fessional skill or those who had given their lives to chemical ex- 
 periments, would, in this country at least, render it impossible, in 
 most cases, to find the requisite skill and ability."' 
 
 A person in reality a medical expert can give his opinion, 
 although he has no license to practise ; however, the Court will 
 receive his testimony only when made satisfied of his competency 
 as an expert. 
 
 Pursuit for an indefinite time of the study of medicine, and inci- 
 dentally of nervous diseases, and the fact that he is a manufacturer 
 of medicines as well as the publisher of books on medicine, also 
 that he is the author of one, without giving its subject, however, do 
 not qualify a witness to testify as an expert on insanity. People 
 V. Rice, 54 N. E. 48, 159 N. Y. 400. 
 
 An undertaker's assistant held not to be qualified as an expert 
 to testify as to when rigor fnortis sets in after death. Com. v. 
 Farrell, 187 Pa. 408. 
 
 Value of Expert Testimony. 
 
 In State v. Kelly, 77 Conn. 266, 275, it is said: "The State 
 introduced the testimony of experts to establish the cause of death. 
 The accused asked the Court to charge that the evidence of ex- 
 perts is of the very lowest order, and the most unsatisfactory 
 character, and that all testimony founded on opinion merely is 
 weak and uncertain, and should in every case be weighed with 
 great caution. The Court declined to so charge, and instructed 
 the jury in effect that such testimony was to be weighed and 
 judged like any other, and the same tests applied thereto, the 
 considerations which ought to enter into such judgment being 
 quite fully stated. The Court was correct in refusing the request. 
 State V. Rathbun, 74 Conn. 524."
 
 AMERICAN NOTES. 154?^** 
 
 Although the competency of an expert is a question for the 
 Court, the weight to be given to his testimony is for the jury, 
 and they may consider the extent of his quahfications. The fol- 
 lowing instruction has been upheld : " You are the judges of the 
 weight to be given to such testimony, taking into consideration 
 the knowledge of said witnesses, or the want of it, the disagree- 
 ment of the experts, if any, and also the further fact whether they 
 or any of them are practical chemists, or whether they or any of 
 them have little or great knowledge of chemistry." State v. Cole, 
 6;^ Iowa, 695. 
 
 In Parnell ?'. Com., 86 Pa. 260, where the defendant's sanity was 
 to be determined, it was held error for the trial court to express a 
 doubt to the jury as to " wliether you will realize much, if any, 
 valuable aid from them (medical experts) in coming to a cor- 
 rect conclusion as regards the responsibility for crime by this 
 prisoner." 
 
 In regard to the weight of expert testimony as to insanity, the 
 jury in State v. Windsor, 5 Harr. (Del.) 512, 542, was instructed: 
 " Such opinions, when they come from persons of great experi- 
 ence, and in whose correctness and sobriety of judgment just con- 
 fidence can be had, are of great weight, and deserve the respectful 
 consideration of the jury. But the opinion of a medical man of 
 small experience, or of one who has crude and visionary notions, 
 or who has some favorite theory to support, is entitled to very 
 little consideration." 
 
 Foisoiiing Cases. 
 
 A physician, after a minute microscopical examination of the 
 stomach and intestines of the person alleged to have been ' 
 poisoned, may testify that he found "tartar emetic," and that, in 
 his opinion, it was the cause of the death. State v. Fournier, 68 
 Vt. 262. 
 
 Experts who have made an analysis may testify as to finding 
 poisons in the body of the deceased. State v. Bowman, 78 N. C. 
 
 509- 
 
 In the case of Com. v. Hobbs, 140 Mass. 443, the defendant 
 was charged with attempting to poison another by mixing white 
 arsenic with certain rye and Indian meal used by that other. It 
 was shown that the defendant had bought two boxes of " Rough
 
 154^"'** AMERICAN NOTES. 
 
 oil Rats." A chemist was allowed to testify thai he had analyzed 
 certain bread baked from the meal, and also certain samples of 
 the meal, and that they contained white arsenic; also that he had 
 analyzed samples of the trade substance known as " Rough on 
 Rats," though not the contents of the particular boxes bought by 
 the defendant, and found that the substance was white arsenic 
 colored with lampblack. 
 
 In State v. Cole, 94 N. C. 958, the defendant was charged with 
 murdering his wife with strychnia. Her body was exhumed sev- 
 eral months after death, the stomach removed by two i^hysicians 
 and sealed in a glass jar, and turned over to a chemist and toxi- 
 cologist for analysis. He testified that he had found strychnia, and 
 that it had caused death. 
 
 An expert was allowed in State v. Slagh, 83 N. C. 630, to state 
 his opinion that a mixture contained certain poisonous ingredients, 
 without having made an analysis, but merely from the taste, smell, 
 and appearance. 
 
 A physician may testify as an expert as to the symptoms to be 
 expected to follow the administration of a certain poison, or as to 
 the effect of a poison on the human system. State v. Cook, 17 
 Kan. 392 ; State v. Terrill, 12 Rich. (S. C.) 321. 
 
 A chemist and toxicologist may testify as to the finding of poison 
 in the stomach of the deceased, and as to the effect it would have 
 upon the human system, even though he is not a physician. State 
 V. Cook, 17 Kan. 392. 
 
 A physician who has no knowledge of the effects of a certain 
 substance, except that it killed a cat upon which he tried it, can- 
 not, in a homicide case, testify that it was a poison. Rose v. 
 State, 7 Circ. Dec. 226, 13 Oiiio Circ. Ct. 342, 56 Ohio St. 779. 
 
 There is no presumption that the chemicals used to detect 
 poison were impure. Dyer v. State, 74 Ind. 594. 
 
 Blood Stains. 
 
 Experts are allowed to testify that they can determine whether 
 certain blood is human or not, and further, as to whether the blood 
 in question is human. Com. v. Sturtivant, 117 Mass. 122; State 
 V. Knight, 43 Me. i, 133 ; Knoll v. State, 55 Wis. 249, 
 
 Evidence of physician that certain spots on overalls were blood
 
 AMERICAN NOTES. 1^4 zv** 
 
 admissible. Com. v. Crossmire, 156 Pa. 304; See McLain v. 
 Com., 99 Pa. 86. 
 
 Evidence of a test by physicians as to a spot of supposed blood 
 on the defendant's clothing is admissible. Beavers v. State, 58 
 Ind. 530. 
 
 One not an expert may be permitted to testify that certain 
 spots were blood stains. " We have given due consideration to 
 the able argument of the prisoner's counsel, to the effect that 
 uneducated and ignorant men are incompetent to testify under 
 the circumstances, and that it is alone within the province of 
 experienced and scientific experts to give evidence on the subject ; 
 but we are, after careful investigation, brought to the conclusion, 
 that in many instances the ordinary mind may be able to determine 
 from observation and experience the character of such stains." 
 
 In People 7'. Gonzales (35 N. Y. 49), it was held that stains 
 of blood upon the person and clothing worn by the accused on 
 the night of the murder may be shown by persons who are not 
 experts, and matters of common observation may ordinarily be 
 proved by those who witness them, without resorting to scientific 
 or mechanical tests to verify them with definite precision. It is 
 said, in the opinion by Porter, J.: " The testimony of the chem- 
 ist who has analyzed blood, and that of the observer who has 
 merely recognized it, belong to the same legal grade of evidence ; 
 and though the one may be entitled to much greater weight than 
 the other, with the jury, the exclusion of either would be illegal." 
 People V. Greenfield, 85 N. Y. 75, 39 Am. Rep. 636. 
 
 Stains may be proved to be blood, even though no analysis is 
 made. It is for the jury to say whether the proof is sufficient. 
 Gaines z: Com., 50 Pa. 330. 
 
 Experi7nents. 
 
 An expert may give an account of experiments performed by 
 him for the purpose of forming his opinion. Sullivan v. Cora., 
 3 Pa. 284. 
 
 Evidence of experiments to test the truth of testimony as to cer- 
 tain occurrences may be admissible if it is clear that they were per- 
 formed under the same circumstances as existed at the time of the 
 original occurrence. People v. Levine, 85 Cal. 39 (length of time 
 for a candle to burn a certain amount) ; People v. Morrigan, 29
 
 ic^.r** AMERICAN NOTES. 
 
 Mich. 5 (possibility of taking a certain pocket-book through a slit 
 in a coat since mended) ; People v. Clark, 84 Cal. 573 (distance 
 at which the discharge of a gun will burn clothing) ; Starr ?'. 
 People (Colo.), 63 Pac. 299 (distance a certain conversation 
 could have been heard) ; Wilson v. State (Tex-), 36 S. W. 587 
 (same ); State v. Flint, 60 Vt. 304 (time required to walk between 
 two places); Moore v. State, 96 Tenn. 209 (relative positions of 
 accused and deceased when a shot was fired) ; Sullivan z\ Com., 
 93 Pa. 284 (powder marks). 
 
 Cause and Nature of an Injury. 
 
 Expert opinion is admissible as to the nature and effect of an 
 injury, and also as to how it was caused. Williams v. State, 64 
 Md. 384. 
 
 A medical expert may testify as to what, in his opinion, caused a 
 hole in the skull of deceased. Davis v. State, 38 Md. 15. 
 
 Means of Producing Death. 
 
 Expert evidence may be admissible as to the means by which 
 death was produced. In People v. Durrant, 116 Cal. 179, 210, 
 the Court says as follows : " Dr. Barret was shown to be a prac- 
 tising physician and surgeon. He performed the autopsy upon 
 the body of the dead girl, gave evidence of its condition, and ex- 
 pressed his judgment that the cause of death was strangulation. 
 He was then asked : '■ What in your judgment was the means used 
 for the strangulation?' The witness answered : * I think the means 
 
 used were hands.' " 
 
 Rape. 
 
 Expert testimony is admissible in rape cases to determine 
 whether or not there was penetration. State v. Smith, Philip's 
 (N. C.) Law, 302 ; State v. Knapp, 45 N. H. 148. 
 
 And in Richardson's Medical Microscopy, 299, it is said that 
 by the use of the microscope, stains upon the female's clothing 
 may be shown with absolute certainty to be seminal stains. 
 
 AboJiion. 
 
 Experts may testify as to the drugs and instruments with which 
 an abortion can be produced, and whether an abortion has been
 
 AMERICAN NOTES. 1 54;'** 
 
 performed. State v. Smith, 32 Me. 370 ; Reg. v. Still, 30 Upper 
 Can. (C. P.) 30; Com. v. Brown, 121 Mass. 69. 
 
 Pregnancy. 
 
 Scientific testimony is admissible on the question of the con- 
 ditions under which pregnancy may occur. Young 7'. Johnson, 
 123 N. Y. 232. 
 
 Identification of IVooct. 
 
 Skilled woodworkers have been allowed to testify that a block 
 found in a box used for incendiary purposes was originally part 
 of the same stick as other pieces found in the defendant's work- 
 shop, the object of the testimony being to connect the defendant 
 with the crime of arson where an exactly similar box had been 
 used. Com. v. Choate, 105 Mass. 451.
 
 CHAPTER IV. 
 
 EXTRINSIC AND MECHANICAL INCULPATORY 
 INDICATIONS. 
 
 Inculpatory circumstances of an extrinsic and 
 mechanical nature, are such as are derived from the 
 physical peculiarities and characteristics of persons 
 and things, — from facts and objects which bear a 
 relation to our corporeal nature, and are apparently 
 independent of moral indications. Such facts are 
 intimately related to, and as it were dovetail with, the 
 corpus delicti; and they are the links which establish 
 the connection between the guilty act and its visible 
 moral origin. It is impossible even to classify, and 
 still less to enumerate, evidentiary facts of the kind 
 in question, except in a very general way ; but it 
 may be interesting and instructive, by way of 
 illustration, to advert to some of the principal heads 
 of such evidence, and to some remarkable cases 
 which have occurred in the records of our criminal 
 jurisprudence. One important and admonitory 
 result of such a process will be to show that all such 
 facts are unavoidably associated with attendant 
 sources of error and fallacy. 
 
 The principal facts of circumstantial evidence of 
 an external character relate to questions of identity 
 — of person — of things — of handwriting — and of 
 time ; but there must necessarily be a number of 
 isolated facts which admit of no specific classification.
 
 156 extrinsic inculpatory indications. 
 
 Section i. 
 identification of person. 
 
 In the investigation of every allegation of legal 
 crime, it is fundamentally requisite to establish, by 
 direct or circumstantial evidence, the identity of the 
 individual accused as the party who committed the 
 imputed offence. It might be concluded, by persons 
 not conversant with judicial proceedings, that identi- 
 hcation is seldom attended with serious difficulty : but 
 such is not the case. Illustrations are numerous 
 to show that what are supposed to be the clearest 
 intimations of the senses, are sometimes fallacious and 
 deceptive, and some extraordinary cases haveoccurred 
 of mistaken personal identity {a). Hence the particu- 
 larity, and as unretiecting persons too hastily conclude, 
 the frivolous minuteness of inquiry, by professional 
 advocates as to the ca2isa scienticE, in cases of con- 
 troverted identity, whether of persons or of things. 
 
 Two men were convicted before Mr. Justice 
 Grose of a murder, and executed ; and the identity 
 of the prisoners was positivel\' sworn to by a lady 
 who was in company wath the deceased at the time 
 of the robbery and murder ; but several years after- 
 wards two men, who suffered for other crimes, 
 confessed at the scaffold the commission of the 
 murder for which these persons were executed {b). 
 
 (a) Rex V. Wood attd Browft, p. 41, supra ; Rex v. Colemafi, pp. 103 
 and no, supra. In Reg. v. Markliam (C. C. C. 1856) a man was sen- 
 tenced to four years' penal servitude for uttering a forged cheque, but 
 was subsequently pardoned on the conviction of the real offender. 
 
 (b) Rex V. Clinch and Mackley, Paris «& Fonblanque, Medical 
 Jurisprudence, vol. iii., p. 144 (note), and Sess. Papers, 1797.
 
 IDENTIFICATION OF PERSON. 157 
 
 A young man was tried at the Old Bailey, July, 
 1824, on five indictments for different acts of theft. 
 It ai)i)eared that a person resenibl'no- the prisoner 
 in size and general appearance had called at various 
 shops in the metropolis tor the purpose of looking 
 at books, jewellery, and other articles, with the 
 pretended intention of makin:^ purchases, but made 
 off with the property placed before him while the 
 shopkeepers were engr.ged in looking out other 
 articles. In each of these cases the prisoner was 
 positively identified by several persons, while in 
 the majority of them an alibi was as clearly and 
 pjsitively established, and the young man was 
 proved to be of orderly habits and irreproachable 
 character, and under no temptation from want of 
 money to resort to acts of dishonesty. Similar 
 depredations on other tradesmen had been committed 
 by a person resembling the prisoner, and those 
 persons deposed that, though there was a consider- 
 able resemblance to the prisoner, he was not the 
 person who had robbed them. He was convicted 
 upon one indictment, but acquitted on all the others; 
 and the judge and jurors who tried the last three 
 cases expressed their conviction that the witnesses 
 had been mistaken, and that the prosecutor had been 
 robbed by another person resembling the prisoner. 
 A pardon was immediatel\ procured in respect of that 
 charge on which the conviction had taken place {c) 
 
 A few months before the last-mentioned case, a 
 respectable young man was tried for a highway 
 robbery committed at Bethnal Green, in which 
 
 (f) Rex V. Robittson, O.B. Sessions Papers, 1824.
 
 158 EXTRINSIC INCULPATORY INDICATIONS. 
 
 nei^^hboLirhuod both he and the prosecutor resided. 
 The prosecutor swore positively that the prisoner 
 ■was the man who robbed him of his watch. A 
 youno;' woman, to whom the prisoner paid his 
 addresses, gave evidence which proved a complete 
 alibi. The prosecutor was then ordered out of 
 court, and in the interval another young man, who 
 awaited his trial on a capital charge, was introduced 
 and placed by the side of the prisoner. The 
 prosecutor was again put into the witness-box, and 
 addressed by the prisoner's counsel thus : " Remem- 
 ber, the life of this young man depends upon your 
 reply to the question I am about to put, Will you 
 swear again that the young man at the bar is the 
 person who assaulted and robbed you?" The 
 \Yitness turned his head toward the dock, when 
 beholding two men so nearly alike, he dropped his 
 hat, became speechless with astonishment for a time, 
 and at length declined swearing to either. The 
 prisoner was of course acquitted. The other young 
 man was tried for another offence and executed ; 
 and before his death acknowledged that he had 
 committed the robbery in question {d). Upon a 
 trial for burglary, where there was conflicting 
 evidence as to the identity of the prisoner, Mr. 
 Baron Bolland, after remarking upon the risk 
 incurred in pronouncing on evidence of identity 
 exposed to such doubt, said that when at the bar, 
 he had prosecuted a woman for child- stealing, 
 tracing her buying ribbons and other articles at 
 
 (if) Paris & Fonblanque, Medical Jurisprudence, vol. iii., p. 143 
 (note b) ; Amos's Great Oyer of Poisoning (the trial of the Earl of 
 Somerset), at p. 265.
 
 IDENTIFICATION OF PERSON. 159 
 
 various places in London, and at last into a coach at 
 Bishopsgate, by eleven witnesses, whose evidence 
 was contradicted by a host of other witnesses, and 
 she was acquitted ; and that he had afterwards 
 prosecuted the very woman who really stole the 
 child, and traced her by thirteen witnesses. "These 
 contradictions," said the learned judge, "make one 
 tremble at the consequences of relying on evidence 
 of this nature, unsupported by other proof" (e). 
 
 As incidental to the establishment of identity, the 
 quantity of light necessary to enable a witness to 
 form a satisfactory opinion has occasionally become 
 the subject of discussion. A man was tried in 
 January, 1799, for shooting at three Bow Street 
 officers, who, in consequence of several robberies 
 having been committed near Hounslow, were em- 
 ployed to scour that neighbourhood. They were 
 attacked in a post-chaise by two persons on horseback, 
 one of whom stationed himself at the head of the 
 horses, and the other went to the side of the chaise. 
 One of the officers stated that the night was dark, 
 but that from the flash of the pistols he could dis- 
 tinctly see that one of the robbers rode a dark-brown 
 horse, between thirteen and fourteen hands high, of 
 a very remarkable shape, having a square head and 
 thick shoulders, that he could select him out of fifty 
 horses, and had seen him since at a stable in Long 
 Acre ; and that he also perceived that the person 
 at the side glass had on a rough shag great-coat {/). 
 
 (e) Rex V. Sawyer^ Reading Assizes. 
 
 (/) Rex V. Haines, Paris & Fonblanque, Medical Jurisprudence, 
 vol. iii., p. 144 (note).
 
 l6o EXTRINSIC INCULPATORY INDICATIONS. 
 
 Similar evidence was given on a trial for lii_L;h 
 treason (^') ; and in a case of burglary before the 
 Special C(Miiinission at York, January, 1 8 1 3, a witness 
 stated that a man came into his room in the night, 
 and caused a light by striking on the stone floor with 
 something like a sword, which produced a flash near 
 his face, and enabled him to observe that his fore- 
 head and cheeks were blacked over in streaks, that 
 he had on a dark-coloured top-coat and a dark- 
 coloured handkerchief, and was a large man, from 
 which circumstances and from his voice, he believed 
 the prisoner to be the same man [h). In another 
 
 [g) Rexv. Byrne, 28 St. Tr. 819. 
 
 {h) Rex V. Brook, 31 St. Tr. 1135, 1 137; but see " Trait6 de la 
 Preuve," par Desquiron, 274, where it is stated that after the con- 
 demnation of a man for murder, on the testimony of two witnesses, 
 who deposed that they recognized him by the light from the discharge 
 of a gun, experiments were made, from which it appeared that such 
 recognition was impossible. 
 
 The late learned Recorder of Birmingham (M. D. Hill, Esq., Q.C.) 
 gave the Editor the particulars of a remarkable case, in which he was 
 retained as counsel for a prisoner accused of shooting at a young 
 woman, and in which the intended victim was prepared to swear that 
 she recognized the prisoner by the flash of the gun which was fired 
 at her. The trial, which was to have taken place at the Derby Spring 
 Assizes, 1840, was prevented by the suicide of the prisoner, after the 
 business of the Assizes had begun ; but Mr. Hill was present at a 
 series of experiments made with a view to test the possibility of the 
 alleged recognition, and the conclusion he drew was " that all stories 
 of recognition from the flash of gun or pistol must be founded upon a 
 fallacy." There were many circumstances in the case calculated to 
 produce a strong impression on the young woman's mind that the 
 prisoner was her assailant, and she doubtless mistook the impression 
 so created for ocular demonstration. On the other hand, it is asserted 
 in Taylor's Medical Jurisprudence (4th ed, 1894, vol. i., p. 729) that 
 from information which the author was able to collect on this point, 
 there appears to be no do bt that an assailant may be thus 
 occasionally identified. No doubt it depends largely upon the 
 quickness of individual sight.
 
 IDENTIFICATION OF PERSON. l6l 
 
 case a gentleman who was shot at while driving home 
 in his gig, and wounded in the elbow, stated that 
 when he observed the flash of the gun, he saw that 
 it was levelled towards him, and that the light enabled 
 him to recosfnize at once the features of the accused. 
 On cross-examination he stated that he was quite 
 sure he could see him, and that he was not mistaken 
 as to his identity ; but the prisoner was acquitted (/). 
 
 A great deal of the value of direct evidence of 
 identification must depend upon the personal appear- 
 ance of the subject of identification. There are 
 some men with peculiarities and characteristics so 
 marked that only a very careless observer (of w^hom, 
 however, there are a great number) could well be 
 wronof about them. There are others — and a far 
 greater number — whose features and persons are of 
 the very commonest types, and who are hardly dis- 
 tinguishable by a casual observer from hundreds to 
 be met every day in the streets. The physical 
 characteristics of the subject of identification may be 
 of the one category or the other, or may belong to 
 any one of the infinite gradations between the 
 two extremes. Fortunately the tribunal has the 
 advantage of seeing the person sought to be iden- 
 tified, and the foregoing considerations can always 
 be brought home to the minds of the jurors. 
 
 It may not be out of place to mention a remarkable 
 case which illustrates the difficulties surroundino- the 
 determination of personal identity. A man was 
 
 (z) Reg. V. White., Croydon Summer Assizes, 1839. Mentioned in 
 Taylor's Medical Jurisprudence, 4th ed. 1894, vol. i. p. 729. 
 
 C.E. M
 
 l62 EXTRINSIC INCULPATORY INDICATIONS. 
 
 tried at Manchester for housebreaking. He was 
 convicted. A part of the indictment alleged that 
 he had been previously convicted of a similar 
 offence. A warder from the convict prison from 
 which it was alleged that the prisoner had been dis- 
 charged on completing his former sentence, deposed 
 that the prisoner was the same man, and that he 
 had served his former sentence as James Williams. 
 The prisoner, who vehemently protested that a 
 mistake had been made, elicited from the warder 
 that upon the discharge of James Williams a list 
 had been made of the marks of identification upon 
 him. The list was produced, and the gaol surgeon 
 was requested to take the prisoner to the cells 
 and report what marks he had upon him. He 
 returned with a list which differed very materially 
 from the warder's list, containing some obvious marks 
 which were not in the warder's list, and not con- 
 taining others which were in that list. In particular 
 the prisoner had upon his stomach a large mark 
 of discolouration (" probably congenital," said the 
 surgeon) which was not in the warder's list. Photo- 
 graphs of James Williams were produced by the 
 w^arder, and at the request of the jury the prisoner 
 was placed in various positions, and under various 
 lights, for the purpose of comparison. In the end 
 the jury found that the prisoner was not James 
 Williams, and he received the mitigated sentence 
 due to a first conviction for an offence of this kind. 
 When in prison he memoralized the Home Secre- 
 tary, complaining of some action on the part of the 
 prison authorities. This led to an investigation, in 
 the course of which a petition from James Williams,
 
 IDENTIFICATION OF PERSON. 163 
 
 dated from Chatham convict prison, was found in 
 the archives of the Home Office, and both petitions 
 were sent by the Home Secretary to the judge who 
 tried the case. There was not then room for the 
 smallest doubt as to the identity of the prisoner 
 with James WilHams. Not only were the two hand- 
 writings identical, but there was a peculiar vein of 
 thought and character running through both petitions 
 which could hardly by any possibility have been 
 common to two different persons. The man was of the 
 kind known to seamen as " sea lawyers," and with a 
 very peculiar vein of querulousness eminently charac- 
 teristic. There is not the slightest doubt that the 
 warder was right in his identification [j). The editor 
 is glad to be able to add that during his experience 
 of between seventeen and eighteen years on the 
 Bench, he has met with but one instance of mistake 
 upon the question of previous conviction (k). Upon 
 his sending for the offending witness, and speaking 
 to him of the great gravity of such a mistake, the 
 man (a warder from one of the large London 
 prisons) said in extenuation, " My lord, I identify 
 three thousand a year!" 
 
 The liability to mistake must necessarily be greater 
 where the question of identity is matter of deduction 
 and inference, than where it is the subject of direct 
 evidence. The circumstances from which identity 
 may be thus inferred are innumerable, and admit 
 of only a very general classification. 
 
 (/) /?. V. Henry Evans, Manchester Winter Assizes, 27th January, 
 1885, coram Wills, J. 
 ik) R. V. Helsham, Liverpool Autumn Assizes, 12th November, 1885. 
 
 M 2
 
 164 EXTRINSIC INCULPATORY INDICATIONS. 
 
 Family likeness has often been insisted upon as a 
 reason lor inOtrrini;- parentao^e and identity. In the 
 DouLi^las case Lord Mansfield said : " I have always 
 considered likeness as an argument of a child's being 
 the son of a parent ; and the rather as the distinction 
 between individuals in the hunian species is more 
 discernible than in other animals ; a man may sur- 
 vey ten thousand people before he sees two faces 
 perfectly alike, and in an army of a hundred thou- 
 sand men every one may be known from another. 
 If there should be a likeness of feature, there may 
 be a discriminancy of voice, a difference in the 
 gesture, the smile, and various other things ; whereas 
 a family likeness runs generally through all these, for 
 in everything there is a resemblance, as of features, 
 size, attitude, and action " (/). But in a case in 
 Scotland, where the question was v/ho was the father 
 of a certain woman, an allegation that she had a 
 strong resemblance in the features of the face to one 
 of the tenants of the alleged father, was held not to 
 be relevant, as being too much a matter of fancy 
 and loose opinion to form a material article of evi- 
 dence (;//). In another Scotch case, however — a 
 trial for child-murder — it was permitted (after proof 
 that the child had six toes) to ask a witness whether 
 any members of the prisoner's family had super- 
 numerary fingers and toes ; though the inference to 
 be deduced was evidently only matter of opinion {n). 
 
 (/) 2 Collectanea Juridica, 402 ; Beck's Medical Jurisprudence, 7th ed. 
 p. 402. And see Report of the case of Doe d. Day v. Day, Trial by 
 Ejectment involving a question of Legitimacy, &c., Huntingdon Assizes, 
 July, 1797. Printed at Birmingham, 1823. 
 
 (;«) Rictledge v. CarriitJicrs, Tait's Law of Ev. 2nd ed. p. 441. 
 
 («) I Dickson's Law of Ev. in Scotland, § 19, p. 14.
 
 IDENTIFICATION OF PERSON. 165 
 
 A case of capiuil conviction occurred a few years 
 ago where the prisoner had given his portrait to 
 a youth, which enabled the police, after watching 
 a month in London, to recognize and apprehend 
 him(6') ; and photographic likenesses now frequently 
 lead to the identification of offenders. It is well 
 known that shepherds readily identify their sheep, 
 however intermingled with others (/>) ; and offenders 
 are not unfrequently recognized by the voice (ry). 
 Circumstances frequently contribute to identification, 
 by confining suspicion and limiting the range of 
 inquiry to a class of persons ; as where crimes have 
 been committed by left-handed persons (r); or where, 
 notwithstanding simulated appearances of external 
 violence and infraction, the offenders must have 
 been domestics ; as in a case of two persons 
 convicted of murder, who created an alarm from 
 within the house ; but upon whom nevertheless 
 suspicion fell, from the circumstance that the dew 
 on the grass surrounding the house had not been 
 disturbed on the morning of the murder, which must 
 have been the case had it been committed by any 
 
 {0) Rexv. Arden, 8 London Medical Gazette, 36 ; but identification by 
 photograph alone is regarded with suspicion, and the Court will not 
 act upon it except in very exceptional circumstances. Frith v. Frith, 
 1896, P. 74- 
 
 {p) Rexv. Oliver, Syme's Justiciary Report (Scotch), p. 224. 
 
 {q) Rexv. Brook, 31 St. Tr., cols. 11 24, 1129, 1137. 
 
 {r) Rex V. Oketnan aftd others, 14 St. Tr., col. 1324; Rex v. 
 Richardson — see pp. 384-389, iufra, and in Rex v. Patch, which is 
 given at length at pp. 390-395, infra. One of the circumstances which 
 connected the accused with the crime was that the murderer must 
 have hidden his body behind the door, and fired the shot with his left 
 hand, or he would have been seen ; and the prisoner was proved to be 
 left-handed.
 
 l66 EXTRINSIC INCULPATORY INDICATIONS. 
 
 Other than inmates (^). On the trial of a gentle- 
 man's valet for the murder of his master, it appeared 
 that there were marks on the back door of the house, 
 as if it had been broken into, but the force had been 
 applied from within, and the only way by which this 
 door could be approached from the back, was over 
 a wall, covered with dust which lay undisturbed, or 
 over some tiling, so old and perished that it would 
 not have borne the weight of a man ; so that the 
 appearances of burglarious entry must have been 
 contrived by a domestic. Other facts conclusively 
 fixed the prisoner as the murderer (/). 
 
 Identification is often satisfactorily inferred from 
 the correspondence of fragments of garments, or of 
 written or printed papers, or of other articles belong- 
 ing to or found in the possession of parties charged 
 with crime, with other portions or fragments dis- 
 covered at or near the scene of crime, or otherwise 
 related to the corpus delicti (?/) ; or by means of 
 wounds or marks inflicted upon the person of the 
 offender. 
 
 A coloured man, named Allen, was charged at 
 Cardiff Assizes, in 1889, with the murder of George 
 Kent. He was identified and convicted upon the 
 following evidence : — The dead man's wife saw that 
 her husband's assailant was a black man, and fired 
 a revolver at him. He fell; but afterwards escaped, 
 A few hours later the prisoner was arrested, and 
 
 {s) Rex V. Swan and Jefferys, 18 St. Tr., col. 1194; and see 
 Mascardus, De Probationibus, Concl. cclxxii. 
 (/) Reg. V. Coiirvoisier. See p. 398, infra. 
 iyU. See Mascardus, De Probationibus Concl. Dcccxxxi.
 
 IDENTIFICATION OF PERSON. 167 
 
 a bullet extracted from his thigh which fitted the 
 empty cartridge case (x). 
 
 A woman who was tried for setting the prose- 
 cutor's ricks on fire, had been met near the ricks, 
 about two hours after midnight, and a tinder-box 
 was found near the spot containing some unburnt 
 cotton rag; also, a piece of a woman's neckerchief was 
 found in one of the ricks where the fire had been 
 extinguished. The piece of cotton in the tinder-box 
 was examined with a lens, and the witness deposed 
 that it was of the same fabric and pattern as a gown 
 and some pieces of cotton print taken from the 
 prisoner's box at her lodgings ; that a neckerchief 
 taken from a bundle belonging to the prisoner, 
 found in her lodgings, corresponded with the colour, 
 pattern, and fabric of the piece found in the rick, 
 and that they had both belonged to the same 
 square ; and from the breadth of the hemming, and 
 the distance of the stitches on both pieces, as well 
 as from the circumstance that both pieces were 
 hemmed with black sewing- silk of the same 
 quality (whereas articles of that description were 
 generally sewn with cotton), he inferred that they 
 were the work of the same person. The prisoner 
 was capitally convicted, but, there being reason to 
 believe that she was of unsound mind, she was 
 reprieved {y ). 
 
 A man was connected with the robbery of a bank, 
 by the fragment of a key found in the lock of one of 
 
 (x) Reg. V. Allen. See The Times, March 19th, 18 89. 
 
 {j) Rex \. Hodges,^ SiiwicV. Spring Assizes, \2>iZ, coram Garrow,B.
 
 l68 EXTRINSIC INCULPATORY INDICATIONS. 
 
 the safes, wliicli an Ironmoncrer proved that he had 
 shortly before made for the prisoner (z) ; and a 
 servant-man was connected with the larceny of a 
 number of sovereigns, by the discovery, in the lock 
 of a bureau which had been broken open, of a small 
 piece of steel which had formed part of the blade 
 of a knife belonging to him (a). A young woman 
 was tried at Warwick Summer Assizes, 1887, for the 
 murder of her illegitimate female child. She had 
 been staying at the house of her mother, Charlotte 
 Dodd, at Wellesbourne, a few miles from Warwick. 
 She had the child, then about six weeks old, with 
 her. On the 26th April, carrying her child, she 
 walked with her mother to Warwick, where they 
 stayed some little time at an inn. Not long after- 
 wards the prisoner was seen standing near a bridge 
 over a little watercourse on the Kenilworth road, 
 about two miles from W^arwick. Later in the day 
 she was in Warwick again, without the baby. Her 
 account was that she had taken it to Kenilworth, 
 where "the young man" lived ; that the grandparents 
 had taken the child, and the grandfather had driven 
 her back to Warwick in his trap. *' The young 
 man" did live at Kenilworth, but all the other state- 
 ments were false. On the 28th April the body of 
 a female child was found in the watercourse and 
 under the brido^e. It was not known whose child 
 it was, and, although an inquest was held, the 
 child was buried without being identified — and when 
 
 (z) Rex V. Heath, Alison's Principles of the Criminal Law of 
 Scotland, vol. i. p. 318. 
 
 {a) Reg. V. O-iimp, Stafiford Summer Assizes, 185 1, coram 
 Erie, J.
 
 IDENTIFICATION OF PERSON. 169 
 
 afterwards exhumed, on the 12th May, it was very 
 much decomposed. The child's skull was fractured 
 in such a way as to render it improbable that death 
 was accidental. There were many circumstances 
 tending to incriminate the prisoner, if the child found 
 was hers. The evidence to show that it was her child 
 was as follows: The child was wrapped in a piece 
 of brown paper, and tied round with very fine braid. 
 In the mother's house was found a piece of brown 
 paper corresponding- in quality and appearance with 
 that in which the child was wrapped. On both 
 pieces of paper were a number of stitches of black 
 thread, which had been cut. On the paper in which 
 the child was wrapped was written, " Dodd, passenger 
 to Milverton" — faint, but distinctly visible. Some 
 braid was found in the mother's house, discoloured, 
 but in all other respects corresponding with the 
 braid with which the child's body was tied up. No 
 clothes were found with the child. The prisoner had 
 brought the clothes back to Warwick, saying that 
 the grandparents would not have them, as they had 
 plenty ; which was false. Baby's clothes were found 
 in the mother's house. The prisoner was convicted. 
 The mother was tried with her, but acquitted [d). 
 An attempt to murder, by sending to the prosecutor 
 a parcel, consisting of a tin case containing several 
 pounds of gunpowder, so packed as to explode by 
 the ignition of detonating powder, enclosed between 
 two pieces of paper, connected with a match fastened 
 to the lid and bottom of the box, was brought home 
 to the prisoner by the circumstance that underneath 
 
 {b) R. V. Fanny Goldsby and Chai-loite Dodd, August and, 1887, 
 coram Wills, J.
 
 170 EXTRINSIC INCULPATORY INDICATIONS. 
 
 the outer covcriiiLj of brown paper was fuund a 
 jjortion of the Leeds InUlliocuccr of the 5th of Jul)-, 
 1832, the remaininsj^ portion of which identical paper 
 was found in his house (<:). In other cases identifi- 
 cation has been established by the correspondence 
 of the wadding of a pistol, which stuck in a wouiid, 
 and was part of a ballad, which corresponded with 
 another part found in the prisoner's possession {d) ; 
 and by the like correspondence of the waddino- of 
 firearms with part of a newspaper of which the 
 remainder was found in the possession of the 
 prisoner {e), 
 
 A Spaniard was convicted of having occasioned 
 a grievous injury to an officer of the post-office, by 
 means of several packets containing fulminating 
 powder, put by him into the post-office, one of 
 which exploded in the act of stamping. The letters, 
 
 {c) Rex V. Motmtford, reported on a point of law in i Moo. C. C. 441. 
 (<^) Ex relatione Lord Eldon, when Lord Chancellor, in the House 
 of Lords, November loth, 1820. See Hansard Parliamentary Debates, 
 New Series, vol. iii., at col. 1740. Probably Lord Eldon was referring to 
 the case of John Toms, tried at Lancaster Assizes, 23rd March, 1784, for 
 the murder of Edward Culshaw, at Present. The Editor is indebted to 
 E. B. Dawson, Esq., J. P., chairman of the Visiting Justices, for the follow- 
 ing extract from a book kept by the Governor of Lancaster Castle, and 
 now among the registers of that prison : — "Assizes, March 23rd, 1784, 
 John Toms ... 18 years of age . . . convicted and executed March 
 29th, 1784. N.B. — A very extraordinary fact came out respecting the 
 murder upon which Toms was convicted, viz., he had bought a ballad, 
 and tore part of it off for a wad for the pistol. This wad was found in 
 the deceased's head, which exactly corresponded with the part left in his 
 pocket." The note ends as follows : '■'' Metn. — This Assize lasted from 
 March 23rd to April 3rd. It may be properly called the Black Assize, 
 19 being assigned for capital offences ; 6 of them received sentence of 
 death, and 3 were executed, viz., Toms, Heys, and Dugdale." 
 (*) Keg. v. Cotirinage and Mossingham, see p. 223, infra.
 
 IDENTIFICATION OF PERSON. I7I 
 
 which were in Spanish, and one of them subscribed 
 with the prisoner's name, were addressed to persons 
 at Havannah and Matanzas, who appeared to be the 
 objects of the writer's mahij^nant intentions. There 
 was no proof that the letters were in the prisoner's 
 handwriting, but he was proved to have landed at 
 Liverpool on the 20th of September, and to have 
 put several letters into the post-otiice on the evening 
 of the 22nd, the explosion having occurred on the 
 24th ; and there was found upon his person a seal 
 which corresponded with the impression upon the 
 letters, which circumstance (though there were other 
 strong facts) was considered as conclusive of his 
 guilt, and he was accordingly convicted and sen- 
 tenced to two years' imprisonment {/). On a trial 
 for the forgery of a document, the impression of a 
 seal attached to it corresponded with another im- 
 pression upon a packet of papers produced in 
 evidence by the prisoner, and both impressions 
 were taken from a seal in the possession of a 
 member of his family [g). 
 
 The impressions of shoes, or of shoe-nails, or of 
 other articles of apparel, or of patches, abrasions, or 
 other peculiarities therein, discovered in the soil or 
 clay, or snow, at or near the scene of crime, recently 
 after its commission, frequently lead to the identi- 
 fication and conviction of the guilty parties (//). 
 The presumption founded on these circumstances 
 
 (/) Rex V. Palayo, Liverpool Midsummer Quarter Sessions, 1836. 
 
 {g) Rex V. Humphreys^ see pp. 19S-201, infra. 
 
 {It) Menochius, De Prssumptionibus, lib. v. praes. 31 ; Mascardus, 
 De Probationibus, Concl. Dcccxxxi. ; Traite de la Preuve, par Mitter^ 
 maier, c. 57.
 
 172 EXTRINSIC IN'CULPATORY INDICATIONS. 
 
 has been appealed to by mankind in all ages, 
 and in inquiries of every kind, and is so obviously 
 the dictate of reason, if not of instinct, that it 
 would be superlluous to dwell upon its imptjrtance. 
 The following remarkable cases illustrate the weight 
 of such mechanical facts, when connected wiih other 
 concurring circumstances leading to the same result. 
 
 A farm labourer was tried for the murder of a 
 young woman, a domestic servant living in the same 
 service. A little before seven in the evening she 
 went on an errand to take some barm to a neigh- 
 bouring house, about 200 yards distant, but as it 
 was not wanted, she did not leave it, and set out 
 about seven o'clock on her way back. Being about 
 to leave her situation that evening, she had 
 requested the prisoner to carry her box to the 
 gardener's house, about a quarter of a mile distant. 
 Soon after she set out on her errand, the prisoner 
 followed her, carrying her box, but did not reach 
 the gardener's cottacre until after eitrht. On the 
 following morning she was found, lying on her back, 
 drowned in a shallow pit near a footpath leading 
 from her master's house to the gardener's cottage. 
 There were marks of violence on her person, and 
 one of her shoes and the jug in which she had 
 carried the barm were found near the pit. Barm 
 was also found spilt near the spot, and there were 
 marks of much trampling ; and chaff and grains of 
 wheat were scattered about, which were material 
 facts, the prisoner having been engaged the day 
 before in threshing wheat. Impressions were found 
 in the soil, which was stiff and retentive, of the
 
 IDENTIFICATION OF PERSON. I73 
 
 knee of a man who had worn breeches made of striped 
 corduroy, and patched with the same material, but 
 the patch was not set on straiu^ht, the ribs of the 
 patch meeting the hollows of the garment into 
 which it had been inserted ; which circumstances 
 exactly corresponded with the prisoner's dress. The 
 prisoner denied that he had seen the deceased after 
 she left the house on her errand, and stated that he 
 had been in the interval before his arrival at the 
 gardener's house in company with an acquaintance 
 whom he had met with on the road ; but it was 
 proved that the person referred to, at the time in 
 question, was at work thirty miles off He was 
 convicted and executed (/). 
 
 A man was tried at Stafford Summer Assizes, 
 1844, for the murder of an elderly woman, the 
 housekeeper of an old gentleman at Wednesbury. 
 The only inmates of the house were the old gentle- 
 man, a man-servant, and the deceased woman. Her 
 master went from home on a Saturday morning, 
 about half-past nine o'clock, as he was accustomed 
 to do on that day of the week, leaving the deceased 
 in the house alone. Upon his return, a quarter 
 before two, he found her dead body in the brew- 
 house, her throat having been cut and the house 
 plundered. The murder had probably been com- 
 mitted about a quarter past ten o'clock, as the 
 butcher called at that time and was unable to obtain 
 admittance, and about the same time a scream was 
 heard. Traces were found of a man's rieht and left 
 footsteps leading from a stable In a small plantation 
 
 (/) Rex V. Brindley, Warwick Spring Assizes, 18 16.
 
 174 EXTRINSIC INCULPATORY INDICATIONS. 
 
 near the front of the house, from which any person 
 leaving the house by the front door could be seen ; 
 and similar footsteps were found at the back of the 
 house leadint]^ from thence across a ploughed field 
 for a considerable distance in a sequestered direction, 
 until they reached a canal bank, where they were 
 lost on the hard ground. From the distance between 
 the steps at the back of the house and in the ploughed 
 t'leld, the person whose footsteps they were must have 
 been running ; the impressions were those of right 
 and left boots, and were very distinct, there having 
 been snow and rain, and the ground being very 
 moist. The right footprints had the mark of a tip 
 round the heel ; and the left footprints had the 
 impression of a patch fastened to the sole with nails 
 different in size from those on the sole itself; and 
 altoofether there were four different sorts of nails on 
 the patch and soles, and in some places the nails 
 were missing. Suspicion fell upon the prisoner, 
 who had formerly lived as fellow-servant with the 
 deceased, and who had been seen by several persons 
 in the vicinity of the house a little before ten 
 o'clock. Upon his apprehension on the following 
 morning, his boots, trousers, shirt, and other garments 
 were found to be stained with blood, and the trousers 
 had been rubbed or scraped, as if to obliterate 
 stains. The prisoner wore right and left boots, 
 which were caretully compared with the footprints ; 
 by making impressions of the soles in the soil about 
 six inches from the original footmarks ; which exactly 
 corresponded as to the patch, the tip, and the 
 number, shape, sizes, and arrangement of the nails. 
 The boots were then placed lightly upon the
 
 IDENTIFICATION OF PERSON. I75 
 
 orloinal impressions, and here again the correspon- 
 dence was exact. There could therefore be no 
 doubt that the impressions of all these footsteps had 
 been made by the prisoner's boots. He had been 
 seen about a quarter before eleven on the mornincr 
 of the murder with something bulky under his coat, 
 near the place where the footsteps were lost on the 
 hard ground, and proceeding thence towards the 
 town of Wednesbury. At about eleven o'clock he 
 called at the " Pack Horse " in that place, not far 
 from the house, where he took something to drink 
 and immediately left, and at a little after twelve he 
 called at another public-house, which was also near 
 the scene of the murder, where he stayed some time 
 smoking and drinking. In the interval between the 
 times when the prisoner had called at these public- 
 houses, he was seen at some distance from them, 
 near an old whimsey ; and he was subsequently seen 
 returning in the opposite direction towards Wednes- 
 bury. Five days afterwards, upon further search, 
 the same footprints were discovered on a footpath 
 leading in a direction from the "Pack Horse" 
 towards the whimsey, where two bricks appeared to 
 have been placed to stand upon, close to which was 
 found an impression of a right foot corresponding 
 with the impressions which had been before 
 discovered ; and in the flue was concealed a 
 handkerchief in which were tied up a pair of trousers 
 and waistcoat, part of the property stolen from the 
 house. The prisoner must have availed himself of 
 the interval between the times when he was seen at 
 the two public-houses, to secrete the stolen garments 
 in the whimsey, and thus to divest himself of the
 
 176 EXTRINSIC INCULPATORY INDICATIONS. 
 
 bulky articles \vhich had been observed und('r his 
 coat on his arrival at the " Pack Horse." The jury, 
 after deliberating several hours, returned a verdict of 
 guihy, and he was executed pursuant to his sentence, 
 having- previously made a confession of his guilt (/-'). 
 
 A young man was tried at Taunton for the 
 murder of a little girl. It was a murder of the kind 
 known some years ago as of the " Jack the Ripper" 
 order. The child was last seen going in the direction 
 of her home. Her way was througli a field, across 
 which lay a footpath. On the further side of the 
 field was a ditch, the soil being of clay. In this 
 ditch her body was found, cruelly mutilated. About 
 the time when the murder must have been committed, 
 a man was seen in the ditch. From a variety of 
 circumstances, suspicion fell upon the prisoner. 
 Casts were taken of the footprints in the ditch and 
 close to the child's body. They were not of the 
 best ; but the prisoner's boots had a few individual 
 peculiarities, consisting chiefly of the absence of nails 
 in one place or another from several of the rows on 
 each boot. Careful measurements were made with 
 a pair of compasses, and there was such a mass of 
 correspondences between existing nails and absent 
 nails in boots and footmarks, and such exact equality 
 in the distances between nails which had been worn 
 so as to present peculiarities and the places where 
 nails were absent from both boots and casts, that it 
 was impossible to believe that the correspondences 
 
 {k) Reg. V. Beards, coram Atcherley, Serjt. ; and see other 
 cases of this kind, Rex v. Ricliardson, see pp. 3S4-389, ijtjra; Rex v. 
 Spiggoit and others, 4 Cel. Tr. 446.
 
 IDENTIFICATION OF PERSON. I77 
 
 were accidental. The prisoner was convicted and 
 executed, having confessed his guilt (/). 
 
 In an American case, a prisoner charged with 
 arson had turned his horse's shoes round after 
 arriving at the house, so as to create the appearance 
 of two persons having proceeded to and from it ; but 
 the artifice was the means of deteciion, since the 
 removal of the shoes was indicated by the recent 
 marks of nails on the horse's foot, and afforded one 
 of the most emphatic of the indications by which the 
 prisoner's guilt was established. 
 
 To o-uard against error, it is manifest that the 
 recency of the discovery and comparison of the 
 impressions, relatively to the time of the occurrence 
 of the corpus delicti, and before other persons may 
 have resorted to the spot, is of the highest import- 
 ance. So, the accuracy of the comparison is 
 obviously all-important, and therefore as a further 
 means of guarding against mistake, it must be shown 
 that the shoes were compared with the footmarks 
 before they were put on them {vi) ; and where the 
 comparison had not been previously made, Mr. 
 Justice Parke desired the jury to reject the whole 
 inquiry relating to the identification by shoe-marks (;/). 
 Nor must it be overlooked, that, even where the 
 
 (/) Reg. V. Reyland, Taunton Winter Assizes, February 20th, iS8g, 
 coram Wills, J. 
 
 (;/z) Rex v. Heafon, cited in Rex v. Shaw, i Lewin, C. C. 116. 
 
 {n) Rex V. Shaiu, ibid. The boots or shoes never ought to be put 
 
 into the footprints at all. The impressions for comparison should be 
 
 made by the side and at a sufficient distance from those in question. 
 
 Where the character of the soil and the interval of time permit such a 
 
 C.E. N
 
 178 EXTRINSIC INCULPATORY INDICATIONS. 
 
 identity of footmarks has been established beyond 
 all doubt, they may have Ijeen fabricated with 
 the intention of diverting suspicion from the real 
 offender, and fixing it upon an innocent party {(?) ; 
 and that in other respects this kind of evidence may 
 lead to erroneous interpretation and inference (/). 
 
 The identification of human remains is attended 
 with peculiar difficulties consequent upon the 
 changes produced by death, which will be considered 
 in a subsequent part of this essay. 
 
 Section 2, 
 
 identification of articles of property. 
 
 The identification of articles of property, like that 
 of the human person, is capable of being established, 
 not only by direct evidence, but by means of 
 numberless circumstances which it is not possible to 
 enumerate. Most of the cases of identification which 
 have been mentioned in the preceding Section, are 
 in fact cases of identification of articles of property, 
 applied inferentially to the establishment of personal 
 identity, and sufficiently illustrate the difficulties 
 which attend investigations of this kind. The 
 following cases, as well as others which have been 
 
 thing, the most satisfactory mode of proof is dig out and preserve the 
 original footprints ; where that cannot be done, casts in plaster of Paris 
 should be taken. Where neither of these methods are adopted and 
 the identification is sought to be established merely by the police 
 evidence, juries are apt to pay very little attention to it. 
 
 ((?) See the remarkable case of Franqois Mayenc, Gabriel, 403. 
 
 {p) Rex V. Thornton, see pp. 244 — 249, infra \ Rex v. Isaac Looker, 
 tee pp. 242 — 244, infra.
 
 IDENTIFICATION OF ARTICLES OF PROPERTY. IJQ 
 
 already mentioned, illustrate the liability to error and 
 misconception, of even well-intentioned witnesses 
 who speak to facts of this kind. 
 
 At the Spring Assizes, at Bury St. Edmunds, 1830, 
 a respectable farmer, occupying twelve hundred 
 acres of land, was tried for a burglary and 
 stealing a variety of articles. Amongst the 
 articles alleged to have been stolen were a pair 
 of sheets and a cask, which were found in the 
 possession of the prisoner, and were positively sworn 
 to by the witnesses for the prosecution to be those 
 which had been stolen. The sheets were identified 
 by a particular stain, and the cask by the mark 
 " P. C. 84." enclosed in a circle at one end of it. 
 On the other hand, a number of witnesses swore to 
 the sheets being the prisoner's, by the same mark 
 by which they had been identified by the witnesses 
 on the other side as being the prosecutor's. With 
 respect to the cask, it was proved by numerous 
 witnesses, whose respectability left no doubt of the 
 truth of their testimony, that the prisoner was in 
 the habit of using cranberries in his establishment, 
 and that they came in casks, of which the cask in 
 question was one. In addition to this, it was proved 
 that the prisoner purchased his cranberries from a 
 tradesman in Norwich, whose casks were all marked 
 " P. C. 84." enclosed in a circle, precisely as the 
 prisoner's were, the letters P. C. being the initials 
 of his name, and that the cask in question was one 
 of them. In summing up, the learned judge 
 remarked, that this was one of the most extra- 
 ordinary cases ever tried, and that it certainly 
 
 N 2
 
 l80 EXTRINSIC INCULPATORY INDICATIONS. 
 
 appeared tliat the witnesses for the prosecution 
 were mistaken. The prisoner was acquitted [q). 
 
 A man was tried in Scotland for housebreakinor 
 and theft. The i^irl whose chest liad Ixjen broken 
 open, and whose clothes had been carried off, swore 
 to the only article found in the prisoner's possession 
 and produced, namely, a white gown, as being her 
 property. She had previously described the colour, 
 quality and fashion of the gown, and they all seemed 
 to correspond with the article produced. The 
 housebreaking being clearly proved, and the goods, 
 as it was thought, clearly traced, the case was about 
 to be closed by the prosecutor, when it occurred to 
 one of the jury to cause the girl to put on the gown. 
 To the surprise of every one present, it turned out 
 that the gown wfiich the girl had sworn to as 
 belonging to her — which corresponded with her 
 description, and which she said she had worn only a 
 short time before — would not fit her person. She 
 then examined it more minutely, and at length said 
 it was not her gown, though almost in every respect 
 resembling it. The prisoner was, of course, acquitted ; 
 and it turned out the gown produced belonged to 
 another woman, whose house had been broken 
 into about the same period, by the same person, but 
 of which no evidence had at that time been 
 produced (7'). 
 
 On the trial of a young woman for child-murder, 
 it appeared that the body of a newly-born female 
 
 [q) See Ann. Reg., 1830 (Chr.), p. 5c. 
 
 (r) Rex V. Webster, Burnett on the Criminal Law of Scotland, p. 558 ; 
 19 St. Tr. coL 494 (note).
 
 IDENTIFICATION OF ARTICLES OF PROPERTY. l8l 
 
 cliikl was found in a pond about a hundred yards 
 from her master's house, dressed in a shirt and cap, 
 and a female witness deposed that the stay or tie 
 which was pinned to the cap, and made of spotted 
 Hnen, was made of the same stuff as a cap found in 
 the prisoner's box ; but a mercer declared that the 
 two pieces were not only unlike in pattern, but 
 different in quality {s). 
 
 A youth was convicted of stealing a pocket-book 
 containing- hve one-pound notes, under very extra- 
 ordinary circumstances. The prosecutrix leit home 
 to oro to market in a nei^hbourino" town, and havin^j: 
 stooped down to look at some vegetables exposed 
 to sale, she telt a hand resting upon her shoulder, 
 which on rising up she found to be the prisoner's. 
 Having afterwards purchased some articles at a 
 grocer's shop, on searching for her pocket-book in 
 order to pay for them, she found it gone. Her 
 suspicion fell upon the prisoner, who was appre- 
 hended, and upon his person was found a black 
 pocket-book, which she identified by a particular 
 mark, as that which she had lost, but it contained 
 no money. Several witnesses deposed that the 
 prisoner had long possessed the identical pocket- 
 book, speaking also to particular marks by which 
 they were enabled to identify it ; but some dis- 
 crepancies in their evidence having led to the 
 suspicion that the defence was a fabricated one, the 
 jury returned a verdict of guilty, and the prisoner 
 was sentenced to be transported. During the 
 
 (s) Rex V. Bate, Warwick Autumn Assizes, 1809, bcloie Le 
 Blanc, J.
 
 l82 EXTRINSIC INCULPATORY INDICATIONS. 
 
 continuance of the Assizes, two men who were 
 mowing a field of oats through which the path la)' 
 by which the prosecutrix had gone to market, found 
 in the oats close to the path a black pocket-book 
 containing five one-pound notes. The men took 
 the notes and pocket-book to the prosecutrix, who 
 immediately recognized them ; and the committing 
 magistrate despatched a messenger with the articles 
 found, and her affidavit of identity to the judge at 
 the assize town, who directed the prisoner to be 
 placed at the bar, publicly stated the circumstances 
 so singularly brought to light, and directed his 
 immediate discharge. The prosecutrix must have 
 dropped her pocket-book, or drawn it from her 
 pocket with her handkerchief, and had clearly been 
 mistaken as to the identity of the pocket-book 
 produced upon the trial (/). 
 
 It is not, however, necessary that the identity of 
 stolen property should be invariably established by 
 positive evidence. In many such cases identification 
 is impracticable ; and yet the circumstances may 
 render it impossible to doubt the identity of the 
 property, or to account for the possession of it by 
 the party accused upon any reasonable hypothesis 
 consistent with his innocence ; as in the case of 
 labourers employed in docks, warehouses, or other 
 such establishments, found in possession of tea, 
 sugar, tobacco, pepper, or other like articles, con- 
 cealed about the person, in which cases the similarity 
 or general resemblance of the article stolen is 
 
 (/) Rex V. Gould, Stafford Summer Assizes, 1820, coram 
 Garrow, B.
 
 IDENTIFICATION OF ARTICLES OF PROPERTY. 183 
 
 sufficient (ii). Two men were convicted of stealinj^ 
 a quantity of soap from a soap manufactory near 
 Glasgow, which was broken into on a Saturday 
 night by boring a hole in the wall, and i 20 lbs. of 
 yellow soap abstracted. On the same night, at 
 eleven o'clock, the prisoners were met by a watch- 
 man near the centre of the city, one of them having 
 40 lbs. of yellow soap on his baciv, and the other 
 with his clothes greased all over with the same 
 substance. The prisoners, on seeing the watchman, 
 attempted to escape, but were seized. The owner 
 declared that the soap was exactly of the same kind, 
 size, and shape, with that abstracted from his 
 manufactory ; but as it had no private mark, he 
 could not identify it more distinctly. One of the 
 prisoners had formerly been a servant about the 
 premises, and both of them alleged that they got the 
 soap in a public-house from a man whom they did 
 not know (x). A servant man was seen to come 
 from a part of his master's premises where he had 
 no right to go, and where a large quantity of pepper 
 was stored in bulk, and on being stopped, a quantity 
 of pepper of the same kind was found on his person : 
 it was held by the Court for the Consideration of 
 Crown Cases Reserved that though the pepper 
 could not be positively identified, he had been 
 properly convicted of larceny (j). 
 
 (u) 2 East, P. C. 657 ; 2 Russell on Crimes, 6th ed., p. 294 ; Hex v- 
 W/nye, R. & R. 508 ; Re^. v. Dredge, i Cox, C. C. 235. 
 
 (.r) Rexv.M''Kechnie and To/inie, Glasgow Spring Circuit, 1828, 
 Alison's Principles of the Criminal Law of Scotland, vol. i., 
 p. 322. Cf. p. 80, supra. 
 
 {y) Rex V. Burton, 23 L. J. M. C. 52 ; 6 Cox, C. C. 293 ; and see 
 Reg. V. Hooper, i F. & F. 85.
 
 184 extrinsic inculpatory indications. 
 
 Section 3. 
 
 proof of handwriting 
 
 Strictly speaking, the only evidence of handwriting 
 which is entitled to be called direct, is the evidence 
 of a witness who proves that he himself wrote or 
 signed the document in question, or that of a witness 
 whoproves that he saw the document written orsigned. 
 All other evidence of handwriting must rest in greater 
 or less degree upon inferences drawn from the 
 appearance of the writing in question or other 
 circumstances. 
 
 Where such direct testimony is not available, 
 the best and usual mode of proving handwriting 
 is, by the direct testimony of some witness who 
 has either seen the party write, or acquired a 
 knowledge of his handwriting from having corre- 
 sponded with him, and had transactions in business 
 with him on the faith that letters purporting to 
 have been written or signed by him were genuine. 
 In either case, the witness is supposed to have 
 received into his mind an exemplar of the general 
 character of the handwriting of the party, and he 
 is called on to speak to the writing in question 
 by reference to the standard so formed in his 
 mind (z). 
 
 In cases where evidence of the kinds above 
 
 (z) Per Coleridge, J., in Doe d. Mudd v. SuJcermore, 5 A. &; E., at 
 p. 70s, and 2 N. & P. 16.
 
 PROOF OF HANDWRITING. 185 
 
 descri1:)ed was lacking or required corroboration, 
 the question arose whether it was admissible for the 
 Court or jury to judge of the genuineness of a 
 Avriting in dispute from its likeness or unlikeness to 
 othf^r writings, the genuineness of which was capable 
 of proof in other ways, and whether witnesses might 
 be called for the purpose of proving the effect of 
 such comparison. 
 
 The following may be taken as a fair statement 
 of juridical opinion and practice upon this subject 
 prior to the legislative change introduced in the 
 year 1S54. 
 
 Evidence of similitude of handwriting by the 
 comparison of controverted writing with the admitted 
 or proved writing of the party, made by a witness 
 who had never seen the party write, nor had any 
 knowledge of his handwriting, and who arrived at 
 the inference that it was his handwriting because it 
 was like some other which was his {a), was a mode 
 of proof much lauded by writers on the civil law, 
 and was commonly admitted in those countries 
 whose jurisprudence is founded on that system ; the 
 comparison being made by professional experts 
 appointed by the Court or agreed upon by the 
 parties, under many restrictions for securing the 
 genuineness of the writings which are to form the 
 standard of comparison. Comparison of hand- 
 writing appears also to have been a recognized 
 mode of proof in some of the American States, 
 
 (a) Bentham's Rationale of Judicial Evidence, book vii., c. 3 ; 
 Rex V. De la Mode, 21 St. Tr. col. 810.
 
 l86 EXTRINSIC INCULPATORY INDICATIONS. 
 
 v/hose judicial systems are generally founded on our 
 own {/?). Such evidence was in general inadmissible 
 in this country, though the leaning of text-writers of 
 authority appears to have been rather in favour of 
 the principle of its admissibility ; the only admitted 
 exceptions being, where the writing acknowledged 
 to be genuine was already in evidence in the cause, 
 or the disputed writing was an ancient writing (c). 
 In these excepted cases, the evidence was admitted, 
 it was said, of necessity — in the former case because 
 it was not possible to prevent the jury from making 
 such comparison, and therefore it was best, as was 
 remarked by Lord Denman (d), for the Court to 
 enter with the jury into that inquiry, and do the 
 best it could under circumstances which could not 
 be helped ; — in the latter, because from the lapse of 
 time no living person could have any knowledge of 
 the handwriting from * his own observation (,?), and 
 because in ancient documents it often became a 
 pure question of skill, the character of the hand- 
 writing varying with the age, and the discrimination 
 of it being materially assisted by antiquarian 
 researches (/). 
 
 (d) See in Bemis's Report of the Trial of Professor Webster, some 
 curious evidence of this kind ; see p. 109, supra. 
 
 (<:) Allport V. Meek, 4 C. & P. 267 ; Brojnage v. Rice, 7 ibid. 548 ; 
 Waddingtofi v. Coiisins, ibid. 595 ; Griffith v. Williams, i C. & J. 47 ; 
 Doe d. Perry v. Neivton, i N. & P. 1 ; and 5 A. & E. 514 ; Solita v. 
 Ya-'-roiv, i M. & R. 133 ; Griffits v. Ivery, 11 A. & E. 322 ; The Fits- 
 waiter Peerage, 10 C. &; F. 193 ; Doe d. Jenkins v. Davies, 10 Q. B. 
 314 ; 16 L. J. Q. B. 218 ; and see Reg. v, Taylor, 6 Cox, C. C. 58. 
 
 (d) \tv Doe d. Perry v. Newton, i N. & P. i. 
 
 {e) Per Patteson, J., in Doe d. Muddw Sicckermore, 5 A. & E. 703, 
 at p. 736. 
 
 {/) Per Coleridge, J., ibid., at p. 718.
 
 PROOF OF HANDWRITING. 187 
 
 The evidence of persons accustomed to the critical 
 examination of handwriting, as engravers and 
 inspectors of franks, who, without any previous 
 knowledge of a person's handwriting, have professed 
 to be able to determine by comparison of the 
 disputed with the genuine writing, whether a 
 signature be genuine or not, and also from the 
 general character and appearance of writing, whether 
 it is written in a natural or feigned hand, was 
 formerly considered another exception to the rule (o-) ; 
 but it came to be thought of so little weight, and 
 attempts to introduce it were so much dis- 
 countenanced, that, in the lanofuaofe of Lord 
 Denman (//), this chapter might be considered as 
 expunged from the book of evidence. It was 
 remarked of evidence of this nature, that besides 
 being subject to the same defects as the opinions of 
 persons speaking from previous familiar knowledge, 
 it arose from a forced acquaintance with the hand- 
 writing of a few, often selected, specimens, while the 
 examination was made solely with a view to giving 
 evidence in favour of the party to whom the witness 
 looks for remuneration (z) ; so that, in the words of 
 an eminent Scotch judge, " in almost all countries, 
 the evidence of persons of skill on this subject is 
 almost totally abandoned " (k). 
 
 i/f) Goodtitle v. Rcvett^ 4 T. R. 497 ; Rex v. Cator, 4 Esp. 117 ; Rex 
 v. Johnson, 29 St. Tr. 81. 
 
 (Ji) Doe d. Miidd v. Sitckerniore, 5 A. & E., at p. 751 ; and see 
 Gurney v. Langlands, 5 B. & Aid. 330 ; Constable v. Steibcl, i Hagg, 
 56 ; Young v. Brown, ibid. 569 ; The Fitztvalter Peerage, 10 C. & F, 
 193 ; The Tracy Peerage, ibid. 154. 
 
 {i) Dickson's Law of Evidence in Scotland, vol. i., s. 925, p. 477, 
 
 iJS) Per Lord Mackenzie, ibid., note («).
 
 l88 EXTRINSIC INXULPATORY INDICATIONS. 
 
 An attempt was made in tlie year 1836, in the 
 leading case of Doe v. Suckcrmore, to introduce 
 expert evidence by comparison of liandvvritintys. 
 The question in the cause was the due execution of 
 a will. On the first day of the trial the defendant 
 called an attesting witness, who swore that the 
 attestation was his. On his cross-examination, two 
 signatures to depositions respecting the same will in 
 an Ecclesiastical Court, and several other signatures 
 were shown to him (none of them being in evidence 
 for any other purpose of the cause), and he stated 
 that he believed them to be his. On the following 
 day the plaintiff tendered a witness to prove the 
 attestation not to be genuine. The witness was a 
 bank-inspector, who had no knowledge of the 
 handwriting of the supposed attesting witness, 
 except from having previous to the trial, and again 
 between the two days, examined the signatures 
 adniitted by the attesting witness, which admission 
 he had heard miade in Court. Mr. Justice Vaughan 
 rejected the evidence ; and upon a motion for a new 
 trial on the ground of its improper rejection, the 
 judges of the Court of Queen's Bench were equally 
 divided in opinion (/). 
 
 Thus stood the law down to 1854, when the 
 Common Law Procedure Act of that year {rn) 
 enacted that comparison of a disputed writing with 
 any writing proved to the satisfaction of the judge 
 to be genuine, shall in civil cases be permitted to 
 
 (/) 5 A. & E. 703; and see Hughes v. Rogers, 8 iM. & W. 133; 
 Young V. Hor7ter, 2 M. & R. 536 ; i C. & K. 51. 
 (tn) 17 & 18 Vict. c. 125, s. 27.
 
 PROOF OF HANDWRITING. l8g 
 
 be made by witnesses, and such writing's, and the 
 evidence of witnesses respecting the same, may be 
 submitted to the Court and jury as evidence of the 
 genuineness or otherwise of the writing in dispute. 
 
 A few years later a section in precisely the same 
 terms was incorporated into the Criminal Evidence 
 Act, 1865 (w), so that the anomaly of a difference 
 between the rules governing the admissibility of such 
 evidence in civil and criminal cases no longer exists. 
 
 Evidence as to handwriting is subject to many 
 sources of fallacy and error, among which may be 
 enumerated tuition by the same preceptor, employ- 
 ment with other persons in the same place of busi- 
 ness, as well as designed imitation or disguise, all of 
 which are frequently causes of great similarity in 
 writing-. Men in certain businesses or professions 
 sometimes adopt peculiarities of character, though 
 less frequently than formerly ; and there are charac- 
 teristic peculiarities indicative of age, infirmity, and 
 sex (0). 
 
 Handwriting is sometimes most successfully 
 imitated. On a trial for forgery of bank-notes, a 
 banker's clerk whose name was on one of the notes 
 swore distinctly that it was his handwriting, although 
 as a matter of fact it was forged, while h^ spoke hesi- 
 tatingly with respect to his genuine subscription {/>). 
 A solicitor named Shaw was tried at Derby, in 1S61 
 
 (n) 28 & 29 Vict. c. 18, s. 8. 
 
 (o) See Rex v. Johnson, 29 St. Tr., at col. 475. 
 
 (^) Rex V. Carsewell^ Burnett's Criminal Law of Scotland, 502.
 
 igO EXTRINSIC INCULPATORY INDICATIONS. 
 
 or 186.?, on a number of indictments for forg"ery. 
 One of them related to a deed which purported to be 
 executed by a chent of his named Abel. Abel had 
 executed a g^enuine mortgage, and the solicitor had 
 forged another in his name. The client, Abel, swore 
 to the forgery as his genuine signature, and swore 
 that the s^enuine signature was not his. He (jave 
 this evidence before the magistrate and the grand 
 jury. But he had made a mistake, and in an action, 
 tried likewise at Derby, on the forged deed, it was 
 conclusively established by the evidence of the con- 
 vict, corroborated by a variety of circumstances, 
 that he hsd sworn to the wrong deed as his own [q). 
 Lord Eldon mentioned a very remarkable instance 
 of the uncertainty of this kind of evidence. A deed 
 was produced at a trial on which much doubt was 
 thrown as a discreditable transaction. The solicitor 
 was a very respectable man, and was confident in 
 the character of his attesting witnesses. One of 
 them purported to be Lord Eldon himself, and the 
 solicitor, who had referred to his signature to plead- 
 ings, had no doubt of its authenticity, yet Lord 
 Eldon declared that he had never attested a deed 
 in his life (r). 
 
 Sometimes, on the contrary, a very small matter 
 is conclusive as to the genuineness or otherwise of 
 
 iq) Pai?iter v. Af>el^ coram Erie, C. J., Derby Summer Assizes, 
 1862, 2 H. & C. 113 ; 33 L. J. Exch. 60. In the latter report it is 
 erroneously stated that the convict was not called. The Editor 
 perfectly well remembers his appearance in the witness-box, and in 
 convict clothes, and the contrast he presented to the over-dressed man 
 who had appeared with something of a swagger in the dock a few 
 months before. 
 
 (r) Eaglcion v. Kingston^ 8 Ves,, at p. 476.
 
 PROOF OF HANDWRITING. IQI 
 
 documents of disputed oriL,nn. In Cressiucllv. Jack- 
 sofi {s), certain codicils, an interlineation in a will and 
 part of an epitome of the will and the first codicil were 
 successfully shown to be forgeries. It turned out that 
 the method of crossing the letter /in the word "to "was 
 an absolute key to the handwritings of the testator and 
 the forger — and similarly, in Hozve v. Ashton (/), the 
 method of making the upper part of the figure 7 was 
 conclusively shown to be a crucial test as to whether 
 the incriminated document was genuine or not 
 
 In a case in Doctors' Commons the learned judge 
 repudiated the common objection of painting or 
 touching, as a reason for inferring fraud, saying that 
 there could scarcely be a less certain criterion, and 
 peremptorily declined the use of a glass of high 
 powers, said to have been used by the professional 
 witnesses, observing, in substance, that glasses of 
 high power, however fitly applied to the inspection 
 of natural subjects, rather tend to distort and mis- 
 represent than to place subjects of the kind in question 
 in their true light ; especially when used (their ordi- 
 nary application in the hands of prejudiced persons) to 
 confirm some theory or preconceived opinion (?/). But 
 it is the daily practice of Courts of Common Law to 
 admit the artificial aid of glasses and lamps ; and on 
 an indictment for forgery, the question being whether 
 a paper had originally contained certain pencil 
 marks which were alleged to have been rubbed out, 
 and ink-writings written in their stead, the opinion 
 
 (i') See p. 402, injra. 
 (/) See p. 413, infm, 
 (u) Robson V. Rocke, 2 Addams, 53, at pp. 85, 88 (a), 89.
 
 ig2 EXTRINSIC INCULPATORY INDICATIONS. 
 
 of an cni;ravcr. who liad examined the document 
 wilh a mirror, was licld t<3 be receivable (.r). 
 
 The distrust of maonif)inL,r glasses above alluded 
 to was perhaps natural a century ago, seeing what 
 they were. A glass of high power and with a narrow 
 area of undistorted vision may very well still convey 
 an erroneous impression to the observer. But with 
 such excellent instruments as are readily at command 
 at the present day the old-fashioned distrust has 
 disappeared, and such aids to the eyesight are of 
 the utmost value. Enlarged photographs are often 
 of great use, not only to show the patching and 
 painting which sometimes accompanies a forgery, 
 but also to indicate diversities of ink or half-erased 
 pencil marks : such variations depending upon 
 differences in the chemical composition of the sub- 
 stances remaining upon the paper which affect 
 the actinic effect of the rays reilected from them. 
 Effective use was made of enlarged photographs in 
 investigating the Piggott forgeries, and an elaborate 
 series of them prepared for use before the Parnell 
 Commission was once shown to the Editor. They 
 were conclusive, but were not used in Court as the 
 case for the forgeries broke down upon the cross- 
 examination of Piggott. 
 
 The following extract from a learned judgment 
 of Sir John NichoU embodies many instructive 
 observations upon this kind of evidence : '* This 
 Court has often had occasion to observe, that 
 evidence to handwriting is at best, in its own nature, 
 
 {x) Reg. V. Williams, 8 C. & P. 434.
 
 PROOF OF HANDWRITING. 193 
 
 very inconclusive; affirmative, from the exactness with 
 which handwriting may be imitated ; and negative, 
 from the dissimilarity which is often discoverable in 
 the handwriting of the same person under different 
 circumstances. Without knowing very precisely 
 the state and condition of the writer at the time, 
 and exercising a very discriminating judgment upon 
 these, persons deposing, especially, to a mere 
 sionature not being that of such or such a person 
 from its dissimilarity — howsoever ascertained or 
 supposed to be — to his usual handwriting, are so 
 likely to err, that negative evidence to a mere sub- 
 scription, or signature, can seldom, if ever, under 
 ordinary circumstances, avail in proof against the 
 final authenticity of the instrument to which that 
 subscription or signature is attached. But such 
 evidence is peculiarly fallacious where the dis- 
 similarity relied upon is not that of general character, 
 but merely of particular letters ; for the slightest 
 peculiarities of circumstance or position — as, for 
 instance, the writer sitting up or reclining, or the 
 paper being placed upon a harder or softer substance, 
 or on a plane more or less inclined — nay, the 
 materials, as pen, ink, etc., being different at different 
 times — are amply sufficient to account tor the same 
 letters being made variously at the different times 
 by the same individual. Independently however of 
 anything of this sort, few individuals, it is 
 apprehended, write so uniformly that dissimilar 
 formations of particular letters are grounds for 
 concluding them not to have been made by the 
 same person "(j'). 
 
 {j) Robson V. Rocke, 2 Addams, at p. 79. 
 C.E. O
 
 194 EXTRINSIC INCULPATORY INDICATIONS. 
 
 The difficulty of provingr handwriting is greatly 
 increased where it is studiously disguised ; but such 
 is the power of habit, that though persons may 
 succeed to a certain extent in disguising their writ- 
 ino-, they commonly fall into their natural manner 
 and characteristic peculiarities of writing (z) ; such 
 peculiarities being most commonly manifested in the 
 formation of particular letters, or in the mode of 
 spelling particular words. 
 
 A tailor, of the name of Alexander, having learned 
 that a person of the same name had died, leaving 
 considerable property without any apparent heirs 
 existing, obtained access to a garret in the family 
 mansion ; and it was said found there a collection of 
 old letters about the family. These he carried off, 
 and with their aid fabricated a mass of similar pro- 
 ductions, which, it was said, clearly proved his 
 connection with the family of the deceased, and the 
 Lord Ordinary decided the cause in his favour; the 
 case however was carried to the Inner House. When 
 it came into Court, certain circumstances led Lord 
 Meadowbank, then a young man at the bar, to 
 doubt the authenticity of the documents. One 
 circumstance was, that there were a number of 
 words in the letters, purporting to be from different 
 
 (z) Per Macdonald, L. C. B., in Rex v. Binghain, Horsham Spring 
 Assizes, 1811, Shorthand Report, 106; Howe v. Asliton,^. 413, infra; 
 Cresswell \. Jackson, p. 402, infra, and see p. 191, supra. The latter 
 case presented a curious instance of characteristic spelling. The 
 person alleged to be the writer of the incriminated documents (with 
 only one discovered exception) invariably spelled "daughter" 
 " donghier^'' a phonetic way of spelling the word after the pronuncia- 
 tion common in the district. The testator never made this mistake.
 
 VERIFICATION OF DATES AND TIME. I95 
 
 individuals, spelt, or rather misspelt, in the same 
 way, and some of them so peculiar, that on examin- 
 ing them minutely, there was no doubt that they were 
 all written by the same hand. The case attracted the 
 attention of the Inner House. The party was brought 
 to the clerk's table, and was examined in the presence 
 of the Court. He was desired to write to the dictation 
 of the Lord Justice Clerk, and he misspelt all the words 
 that were misspelt in the letters in precisely the same 
 way ; and this and other circumstances proved that he 
 had fabricated all of them himself. He then confessed 
 the truth of his having written the letters on old 
 paper, which he had found in the garret ; and this 
 result was arrived at in the teeth of the testimony of 
 half-a-dozen engravers, all of whom said that they 
 thought the letters were written by different hands {a). 
 
 It is even more difficult to depose with confi- 
 dence to the identity of a disguised writing, if the 
 disguise is applied to printed characters, and Mr. 
 Baron Rolfe spoke of such evidence as of no value (<^). 
 
 Section 4. 
 
 verification of dates and time. 
 
 Amongst the numerous physical and mechanical 
 circumstances which occasionally lead to the detec- 
 tion of forgery and fraud, a discrepancy between the 
 
 (a) Related by Lord Meadowbank himself, in the course of his 
 charge to the jury, in -R^g- v. Humphreys^ see pp. 198-201, tJifra ; 
 Swinton's Report at p. 350 ; and see Shorthand Report of the case of 
 Smith V. Earl Ferrers, 1846. 
 
 {d) Reg. V. Rush, Norwich Spring Assizes, 1849 ; Professor IVebstcr's 
 case, Bemis's Report, see p. 109, supra. 
 
 O 2
 
 ICj6 EXTRINSIC INCULPATORY INDICATIONS. 
 
 date of a writinL^ and the anno Domini water-mark 
 in the tahric of tlie paper is one of the most strikiiiLi;- ; 
 hut inasmuch as prospective issues of paper, bearing 
 the water-mark of a succeeding year, are occasion- 
 ally matle, tliis circumstance is not always a safe 
 ground of presum[)tion (^) ; and it is not uncommon 
 among mauLifacturers both to post-date and to ante- 
 date their paper-moulds. A witness examined in 
 1834 stated that he was then making moulds with 
 the date of 1828, under a special order [d). In an 
 old case a criminal design was detected by the cir- 
 cumstance that a letter, purporting to come from 
 Venice, was written upon paper made in England (^). 
 
 In one case, in which an action was brought upon 
 a forged cheque alleged to have been given to the 
 plaintiff by a deceased person, the plaintiff, in order 
 to account for the possession of a sum of ^200 
 which he said he had lent to the deceased man, 
 stated that he had borrowed that sum from his 
 mother-in-law, to whom he had given a promissory 
 note, which he produced, having, as he said, obtained 
 it from her for the purposes of the trial. There was 
 a hole through the year mark on the stamp, which he 
 said was caused by his mother-in-law having put it 
 on a file. The note was dated in 1889. The date- 
 mark should have been " 89." Just enough remained 
 of the first fi^^ure to sufiffrest to the iudgre that the 
 
 {c) A Commissioner of the Insolvent Debtors' Court sitting at Wake- 
 field in 1836. discovered that the paper he was then using, which had 
 been issued by the Government stationer, bore the water-mark of 1837. 
 
 {d) Rodger v. Kay, 12 Cases in Court of Session, 317 ; Miller v. 
 Frasei\ 4 ib. 551 ; 4 Murray's Cases in Jury Court, at p. 118. 
 
 ie) Sir Francis Moore's Rep. 817.
 
 VERIFICATION OF DATES AND TIME. IQJ 
 
 curve dill not look like the sharp curve of half of an 
 " 8," and, upon very careful manipulation of the back 
 of the note with a fine instrument, very nearly the 
 whole of the year-mark " 90 " was replaced and 
 made distinctly visible. Evidence from the Stamp 
 Office showed that stamps were never issued post- 
 dated (/). 
 
 The critical examination of the niternal contents 
 of written instruments, perhaps of all others, affords 
 the most satisfactory means of disproving their 
 genuineness and authenticity, especially if they pro- 
 fess to be the productions of an anterior age. It is 
 scarcely possible that a forger, however artful in the 
 execution of his design, should be able to frame a 
 spurious composition without betraying its fraudulent 
 origin by peculiarities of writing or orthography 
 characteristic of a different age or period, or by the 
 employment of words of later introduction, or by the 
 use of them in a sense or meaning which they did 
 not then bear, or by some statement or allusion 
 not in harmony with the known character, opinions, 
 and feelings of the pretended writer, or with events 
 or circumstances which must have been known to 
 him, or by a reference to facts, or modes of thought 
 characteristic of a later or a different age from that 
 to which the writing relates. A writer, eminent 
 alike for his critical sagacity and for his imaginative 
 genius, declared that he had met in his researches 
 with only one poem which, if it had been produced 
 as ancient, could not have been detected on internal 
 
 (/) Howe V. Btircliardt and iDwilicr^ Middlesex Hilary Sittings, 1891, 
 coram Wills, J. ; see pp. 413-414, i7ifra.
 
 ig8 EXTRINSIC INCULPATORY INDICATIONS. 
 
 evidence (o-). Judicial history presents innunK^rnble 
 examples in illustration of the soundness of these 
 principles of judi^Tnent, of which the following are 
 not the least interesting. 
 
 A deed was offered in evidence, bearing date the 
 13th of November in the second and third years of 
 the reign of Philip and Mary, in which they were 
 called " king- and qtteen of Spain and both Sicilies, 
 and dukes of Burgundy, Milan, and Brabant," 
 whereas at that time they were formally styled 
 '"'- princes of Spain and Sicily," and Burgundy was 
 never put before Milan, and they did not assume 
 the title of king and queen of Spain and the two 
 Sicilies until Trinity Term following {Ji), 
 
 A most curious and instructive case of this kind 
 was that of Alexander Humphreys, before the High 
 Court of Justiciary at Edinburgh, April, 1839, for 
 forging and uttering several documents in support 
 of a claim advanced by him to the earldom of 
 Stirling and extensive estates. One of those 
 documents purported to be an excerpt from a 
 charter of Novodamus of King Charles I., bearing 
 date the 7th of December, 1639, in favour of 
 William the first Earl of Stirling, and making the 
 honours and estates of that nobleman, which under 
 previous grants were inheritable only by heirs viale^ 
 descendible in default of heirs male to his eldest 
 heirs female, without division, of the last of such 
 heirs male, and to the heirs male of the body 
 
 (;?■) 2 Lockhart's Life of Scott, c. ix. 
 
 iji) Mossom V. Ivy^ lo St. Tr. 555, at col. 616 ; and see Co. Litt. ^b,
 
 VERIFICATION OF DATES AND TIME. IQQ 
 
 of such heirs female respectively. This excerpt 
 purported in the testatum clause to be witnessed by 
 Archbishop Spottiswood "our chancellor," whereas 
 he died on the 26th of November, 1639, and it was 
 proved by the register of the Privy Council that he 
 resigned the office of Chancellor, and that the Great 
 Seal was delivered to the custody of James, Mar- 
 quess of Hamilton, on the I3tli of November, 1638, 
 more than a year before the date of the pretended 
 charter, and that there was an interregnum in the 
 office of Chancellor until the appointment of Lord 
 Loudon on the 30th of September, 1641. A 
 genuine charter, dated four days after the pre- 
 tended charter, was witnessed by James, Marquess 
 of Hamilton. The circumstance was significant, 
 that in the catalogue of the Scottish chancellors, 
 appended to Spottiswood's History and other 
 works, no mention is made of the interval between 
 the resignation of the Archbishop of St. Andrew's 
 and the appointment of the Earl of Loudon. In 
 the margin of the excerpt was a reference to the 
 register of the Great Seal Book 57, in the following 
 form, "Reg. Mag. Sig. lib. 57;" but it was proved 
 that this mode of marking and reference did not 
 commence until 1806, when the registers were re- 
 bound, in order that they should have one title ; 
 and that previously to that time the title of those 
 documents was, " Charters, book i., book ii,," and 
 so on. In the supposed excerpt the son of the first 
 earl was styled " nostra consanguineo" a mode of 
 address never adopted in old charters in regard to a 
 commoner ; and there w^ere other internal inconcrrui- 
 ties. This document consisted of several leaves
 
 200 EXTRINSIC INCULPATORY INDICATIONS. 
 
 Stitched toq-cther, wliich were of a brown colour — as 
 ^vel! under the stitching as where open ; whereas if 
 the stitcliing had been old, the part of the paper not 
 exposed to the atmosphere would have been whiter 
 than the rest. Around the margin of this excerpt were 
 drawn red lines ; but it was proved by official persons 
 familiar with the extracts of the period, that such lines 
 were not introduced into the Chancery Office till 
 about 1780. A series of anachronisms conclusively 
 disproved the authenticity of several other documents 
 adduced by the prisoner in support of his claim. 
 One of those documents was a copper-plate map 
 of Canada by Guillaume de I'lsle, "Premier G^o- 
 graphe du Roi, avec privilege pour vingt ans," 
 bearing the date of 1703; on the back of which, 
 amongst other supposed attestations, were a note 
 purporting to be in the handwriting of Flechier, 
 Bishop of Nismes, dated the 3rd of June, 1707, and 
 another note purporting to be in the handwriting of 
 Fenelon, Archbishop of Cambray, of the date of the 
 1 6th of October, 1707. It was proved that De I'Isle 
 was not appointed geographer to the king until the 
 24th of August, 1718. In all of De I'lsle's editions 
 of his map the original date of i 703 was preserved 
 as the commencement of his cop) right, but on any 
 change of residence or of designation, he made a 
 corresponding change in the original copper-plate 
 from which all successive issues of the map were 
 engraved, and it was proved by a scientific witness 
 that the title of De I'Isle had been actually altered 
 on the copper-plate of the map since 171 8. It was 
 also proved that Flechier died in 171 1 (the letters- 
 patent for the installation of his successor in the
 
 VERIFICATION OF DATES AND TIME. 201 
 
 bishopric of Nismes being produced, bearing date the 
 26th of February in that year), and that Fenelon died 
 on the /th of January, 171 5. Of course a map issued 
 prior to 1718 could not refer to his appointment of 
 geographer to the king, and any attestation of the 
 date of I 707, or by a person who died before 1 7 1 8, to 
 a map containing a recognition of that appointment 
 must of necessity be spurious. The forger of the 
 map must have been ignorant of the fact that De 
 risle was not appointed geographer to the king until 
 1 718, and misled by the date of 1703 upon his 
 maps ; so difficult is It to preserve consistency in an 
 attempt to impose by means of forgery. The very 
 ink with which some of the pretended attestations 
 were made was not the usual ink of the period, but a 
 modern composition made to imitate ink turned old. 
 There were other strong grounds for impugning the 
 genuineness of these various documents, which the 
 jury unanimously found to be forged (/). 
 
 It was observed by Lord Chief Baron Macdonald, 
 that there is nothing of which we are so little in 
 the habit as measuring with any degree of correct- 
 ness small portions of time ; and that if anyone were 
 to examine with a watch which marks the seconds, 
 how much longer a space of time a few seconds or a 
 few minutes really are than people in general conceive 
 them to be, they would be surprised ; but that in 
 general, when we speak of a minute, or an instant, 
 
 (i) See Report of the Trial of the claimant of the Stirling 
 Peerage, by Archibald Swinton ; another report by William Turnbull ; 
 Remarks on the Trial, by an English Lawyer ; i Townsend's Modern 
 State Trials, 403 ; and Dickson's Law of Evidence in Scotland, vol. L 
 § 2S9, p. 172.
 
 202 EXTRINSIC INCULPATORY INDICATIONS. 
 
 we can hardly be understood to mean more than tliat 
 it was a very short space of time {k). Nevertheless 
 it is sometimes of the highest importance accurately to 
 fix the exact time of the occurrence of an event, and 
 a difference of even a few minutes may be of vital 
 moment. This frequently happens in cases where 
 the defence is that of an a//di. On a charge of 
 murder, where the defence was of that nature, and it 
 was essential to fix the precise times at which the 
 prisoner had been seen by the several witnesses soon 
 after the fatal event which was the subject of 
 investigation, the object was satisfactorily effected 
 by a comparison made by an intelligent witness on 
 the same day, of the various timepieces referred to 
 by the several witnesses, with a public clock ; thus 
 affording the means of reducing the times as spoken 
 to by them to a common standard (/). Post-office 
 marks are often of great importance in fixing 
 disputed dates; but the defective manner in which 
 they are impressed frequently renders them useless, 
 and this has been from time to time the subject of 
 judicial animadversion (/;/). 
 
 Scientific testimony grounded on the state of 
 wounds and injuries to the human body, or on its 
 condition of decay, is frequently employed indirectly 
 in the solution of questions of time ; but cases of 
 this nature belong to the department of medical 
 jurisprudence. 
 
 (/&) J^ex V. Fa/c/i, Gurney's Report, 171 ; see pp. 390-395, tn/ra. 
 
 (/) J^ex V, Tliornton, see pp. 244-249, infra. 
 
 {in) By Lord Campbell, L. C. J., mReg. v. Palmer, see pp. 344-351, 
 iiifra ; and by the Lord Justice Clerk in Reg. \. JMadc.eine S/n/ih, see 
 pp. 300-310, infra.
 
 AMERICAN NOTES. 
 
 [Note to Chapter IV.] 
 
 Ideritification of Person. 
 
 •' [Facts] which establish the identity of any thing or person 
 whose identity is in issue or is or is deemed to be relevant to the 
 issue, or which fix the time or place at which any such fact hap- 
 pened, or which show that any document produced is genuine or 
 otherwise, or which show the relation of the parties by whom any 
 such fact was transacted, or which afforded an opportunity for its 
 occurrence or transaction, or which are necessary to be known in 
 order to show the relevancy of other facts, are deemed to be rele- 
 vant in so far as they are necessary for those purposes respectively." 
 Stephen's Dig. Evid., Art. 9. 
 
 Personal Peculiarities. 
 
 Where it is shown that a blow must have been given with the 
 left hand, it may be shown that the defendant is left-handed. 
 Com. V. Sturtivant, 117 Mass. 131. 
 
 Of the methods of identification Hubback, in his Evidence of 
 Succession, 48 Law Library, star p. 448, writes : " On the features, 
 the most obvious and peculiar of physical characteristics. Lord 
 Mansfield has observed, that the distinction between individuals 
 in the human species is more discernible than in other animals. 
 A man may survey ten thousand people before he sees two faces 
 perfectly alike, and in an army of a hundred thousand men, every 
 one may be known from another. Cases of persons undistinguish- 
 able from each other by this test have, nevertheless, occasionally 
 occurred. . . . Those who have considered this subject attach 
 less importance to the features, which are often founti to undergo 
 great alteration, than to peculiar marks, such as naevi, cicatrices, 
 fractures, and natural deformities. Sometimes marks which have 
 been effaced may be brought out by proper means. A criminal
 
 202 b AMERICAN NOTES. 
 
 who had escaped from prison, after being brantled, and appar- 
 ently destroyed the mark by causing an eruption over the whole 
 surface, but he was long afterwards identified by Fodcr<^, who ap- 
 plied a cold plate of metal, which made the other parts pale, whilst 
 the fatal letters appeared in distinct relief." 
 
 Personal Appearance. 
 
 Upon the issue of identity the appearance of a person two 
 years before, and after the date in question, is competent. Com. 
 V. Campbell, 155 Mass. 537. 
 
 On questions of identity, the memory of personal appearance 
 fifty years back is too unreliable to be considered. Sperry v. 
 Tebbs, 20 Weekly Law Bulletin, 181. 
 
 It is no identifying evidence that witnesses met a man in the 
 street several miles away from the scene of an arson, who was 
 about the size and height of the defendant. People v. Gotshall 
 (Mich.), 82 N. W. 274. 
 
 Evidence of identification is admissible even though it be not 
 positive. In Com. v. Kennedy, i 70 Mass. 18, where the defendant 
 was charged with an attempt to poison another by sticking some 
 arsenic under the crossbar of the prosecuting witness's moustache 
 cup, the following testimony was allowed : " An apothecary testi- 
 fied that he sold a box of ' Rough on Rats ' the day before the cup 
 was found, and, subject to examination, was allowed to testify that, 
 to the best of his knowledge, belief, and recollection, he sold it to 
 the defendant. The identity of a third person always is a matter 
 of inference and opinion." 
 
 Where criminal intercourse with a girl under a certain age is 
 charged, it is proper to consider her appearance as indicating her 
 age. Jones v. State, 106 Ga. 365 ; Com. v. HoUis, 170 Mass. 
 433 ; People v. Elco, 113 Mich. 519. 
 
 A witness or a party may be required to stand up to be identi- 
 fied. Rice V. Rice, 47 N. J. Eq. 559. 
 
 Where one is asked who did a certain thing, an answer " that 
 man" (pointing to the defendant) is proper. Com. v. Whitman, 
 121 Mass. 361. 
 
 The State may bring in the defendant's partner in the crime 
 and identify him as having been with the defendant. State v. 
 Gartrell, 171 Mo. 4S9.
 
 AMERICAN NOTES. 202 C 
 
 Photographs Used to Identify. 
 
 Photographs and portraits are admissible to prove identity. 
 Udderzook v. Com., 76 Pa. 340 ; Com. v. Connors, 156 Pa. 147 ; 
 Bryant's Estate, 176 Pa. 309. 
 
 Bastardy — Identification of Father, 
 
 To show resemblance of a child to its putative father, the child 
 may be exhibited to the jury for their judgment. Crow v. Jordon, 
 49 Ohio St. 655 ; Gaunt v. State, 50 N. J. L. 490 ; Jones v. Jones, 
 45 ^W. 144. 
 
 Identification by Voice. 
 
 Voice used as a mark of identification. State v. Shinborn, 46 
 N. H. 502 ; Com. V. Williams, 105 Mass. 67. 
 
 Identification by voice only, when witness heard defendant 
 speak only twice at a distance of seventy-five yards and amid the 
 barking of dogs, is not sufficient. Patton v. State, 117 Ga. 230. 
 
 "Jeremiah Dowsing deposed, that some day or two after the 
 murder, heard some one at Noxubee turnpike, about two o'clock 
 at night, calling out ; from the voice, thinks it was McCann ; did 
 not see him; had known him before." McCann v. State, 13 
 Smedes & M. (Miss.) 471, 480. 
 
 A witness who has heard the defendant talk but once may 
 testify as to identification by the voice, but the jury may be 
 instructed not to convict upon that evidence alone. Com. 7'. 
 Williams, 105 Mass. 62 ; Com. v. Hayes, 138 Mass. 185. 
 
 Where there is testimony as to identification by voice, the 
 accused, not being a witness, may not repeat something to the 
 jury in rebuttal. Com. v. Scott, 123 Mass. 222. See also John- 
 son V. Com. 115 Pa. 369. 
 
 Wounds on Defendanf s Person. 
 
 Where the defendant was accused of robbing and the prosecut- 
 ing witness testified that he had bitten his assailant on the left leg, 
 it was allowed to be shown that the defendant had certain bruises 
 on his left leg that might have been made by human teeth. State 
 V. Jones, 153 Mo. 457. 
 
 Where the deceased's body was found in a ditch, testimony is 
 competent to show that the defendant was seen coming out of
 
 202 d AMERICAN NOTES. 
 
 that ditch with blood on his coat and a new scratch on liis face. 
 Davis V. State, 126 Ala. 44. 
 
 Where the defendant is charged with rape, to corroborate the 
 identification by the prosecutrix, it may be shown that the accused 
 had scratches on his face the day after the crime and that he had 
 none the day before. State v. Fleming, 130 N. C. 688. 
 
 A conviction would be sustained where it is shown that the 
 defendant and the deceased had gone together to the spot where 
 the deceased was found with her throat cut, and the defendant's 
 finger appears to have been bitten and his coat is torn. Jones v. 
 State, 29 Tex. App. 338. 
 
 Where burglars had been frightened away by firing a shotgun 
 at them, it was shown that one of the defendants was treated that 
 niglit for gunshot wounds in the face, the defendants were shown 
 to have had a horse and buggy that night, and there was one at 
 the scene of the crime, and the owner swore he recognized the 
 voice of another. State v. W'ines (N. J.), 46 Atl. 702. 
 
 Identification by Appearatice and Condition of Clothing. 
 
 Where the defendants were charged with a crime, and the State 
 showed that it was raining at the time and place of the crime, and 
 that clothing belonging to the defendants was found hanging in 
 their barn wet, while other articles were dry, the defendants may 
 prove that the barn leaked, and the State may show in rebuttal 
 that the barn did not leak until long after the date of the crime. 
 Kastner v. State (Neb.), 79 N. W. 713. 
 
 Where the defendant, charged with murder, claimed to have 
 been elsewhere and to have just returned home on the cars, it was 
 shown that a man had been seen to ride away on a mule from the 
 scene of the crime, and when the defendant was arrested at his 
 home thirty miles from that place his trousers had hair on them like 
 that of the mule, and the mule was found near by much exhausted. 
 This identified him as the man seen, and with other evidence was 
 sufficient to convict. Chapman v. State, 34 Tex. Cr. R. 27. 
 
 Defendant was identified as a chicken thief by tracks in the 
 snow, feathers on his coat, and attempting to sell the stolen prop- 
 erty. People V. Lyons, 51 N. Y. Supp. 811. 
 
 There was mud on the defendant's clothes like that in a cellar 
 on a lot adjoining the burglarized house where stolen articles
 
 AMERICAN NOTES. 202 e 
 
 were concealed, but the defendant showed that such mud was 
 common on all the streets. People v. Cronk, 58 N. Y. Supp. 13. 
 
 It may be shown that the clothing of one accused of arson 
 smelled of kerosene and that the fire had been started with kero- 
 sene. People V. Bishop, 134 Cal. 682. 
 
 Where one is accused of setting a fire with kerosene, it may 
 be shown that there were kerosene stains on his shirt. State v. 
 Kingsbury, 58 Me. 238. 
 
 In People v. Doneburg, 64 N. Y, Supp. 438, where a person 
 after committing arson was traced across a ditch, in crossing 
 which it appeared that he had fallen on his knee and elbow, evi- 
 dence was held admissible to show that defendant's clothing was 
 discolored at those places. 
 
 Blood Stains. 
 
 It may be shown that a suit of clothes belonging to the de- 
 fendant had blood stains on it, even though it is not established 
 that he wore that suit on the day of the murder. People v. 
 Neufeld, 165 N. Y. 43. 
 
 In Murphy v. State, 36 Tex. Cr. R. 24, 35 S. W. 174, the 
 defendant was proved to have had blood stains on his shirt and 
 face. 
 
 Other cases where blood stains were used as a mark of identi- 
 fication are Cicely v. State, 13 Smedes & M. (Miss.) 203; Davis 
 V. State, 126 Ala. 44 ; Newman v. State, 32 Tex. Cr. R. ; Com. 
 V. Crossmire, 156 Pa. 304. 
 
 Experts are allowed to testify that they can determine whether 
 certain blood is human or not. and further as to whether the 
 blood in question is human. Com. v. Sturtivant, 117 Mass. 122 ; 
 State V. Knight, 43 Me. i, 133 ; Knoll v. State, 55 Wis. 249. 
 
 Evidence of a test by physicians as to a spot of supposed 
 blood on the defendant's clothing is admissible. Beavers v. 
 State, 58 Ind. 530. 
 
 One who is not an expert may testify that certain spots seen 
 by him are blood spots. " The testimony of the chemist who 
 has analyzed blood and that of the observer who has merely 
 recognized it, belong to the same legal grade of evidence ; and 
 though the one may be entitled to much greater weight than the 
 other with the jury, the exclusion of either would be illegal."
 
 202/ AMERICAN NOTES. 
 
 People V. Gonzales, 35 N. V. 49 ; I'coiile ?'. Greenfield, 85 N. Y. 
 75, 39 Am. Rep. 636; Gaines ?'. Com., 50 Pa. 330. 
 
 Articles 0/ Property Used to Llcniify. 
 
 It may be shown that the deceased had a number of S20 bills ; 
 that after the homicide the defendant changed one such bill and 
 hid others in a cellar, where they were found. State v. Gallivan, 
 75 Conn. 326. 
 
 \\\ People V. Hamilton, 137 N. Y. 531, the defendant's identi- 
 fication as the murderer of his wife was aided by the finding of a 
 cuff-button near her body like an odd one in his room, the find- 
 ing of a razor near her body, and the fact that his razor was gone, 
 and the finiling of defendant's cane on the scene of the crime. 
 
 In State v. Howard, 118 Mo. 127, part of the means used to 
 identify the defendant as the murderer were a pocket-book and a 
 manuscript poem found near the body and shown to have been in 
 the possession of the defendant a short time previously. 
 
 Where the State alleged that the defendant, after shooting the 
 deceased with a 30-30 caliber rifle, fled along a certain road in a 
 sparsely settled country, it was allowed to prove the finding of 
 cartridges of 30-30 caliber along that road two miles from the 
 scene of the crime and two weeks later. Horn v. State (Wyo.), 
 73 Pac. 705. 
 
 In the case of People v. Durrant, 116 Cal. 179, 205, where 
 the defendant was charged with the murder of a girl, it appeared 
 that the rings which she had worn were after her death sent by 
 mail, wrapped in a scrap of the " San Francisco Examiner," to 
 the girl's aunt. On this scrap of paper were written two names 
 in the defendant's handwriting, one being the name of defend- 
 ant's classmate, the other the name of one of defendant's in- 
 structors. These names, with admittedly genuine specimens of 
 defendant's handwriting, were given to the jury. 
 
 In King v. State (Tex.), 67 S. W, 410, it was shown that de- 
 fendant had in his possession, when arrested while committing a 
 subsequent burglary, a brace taken from the house in question. 
 
 It may be shown that defendant stated what had become of 
 part of the goods stolen, and that he had been seen on the road 
 between the scene of the crime and the place where he was 
 arrested. State v. Armstrong, 170 Mo. 406.
 
 AMERICAN NOTES. 202^ 
 
 A pistol stolen from the house and found in the possession of 
 one of the defendants is admissible as against the others also. 
 Terry v. State (Tex.), 47 S. W. 654. 
 
 In Com. V. Webster, 5 Cush. 295, to identify the defendant as 
 the murderer of Dr. Parkman, it was proved that portions of the 
 latter's body, his teeth, bones, etc., were found about the medical 
 college where Professor Webster was employed. 
 
 Gun-wadding. 
 
 In Williams 7'. State (Ark.), 16 S- W. 816, the defendant was 
 charged with shooting the deceased with a shotgun. He was 
 tracked by the sheriff with bloodhounds from the place of the 
 crime to his home, and there they found a shotgun, one barrel 
 of which had recently been discharged. The gun-wadding found 
 at the scene of the crime was just like that in the undischarged 
 barrel of the gun, and the defendant's shoes exactly fitted tracks 
 leading from the house of the deceased. 
 
 The evidence identifying the defendant in a murder case as 
 having been at the place where the shot was fired was as follows : 
 The tracks near the place were shown to be like his ; at his house 
 were found a gun lately fired, and shot and wadding like that 
 used by the murderer ; and on the fence where the shot was fired 
 was found a note on a leaf from the defendant's note-book and 
 in his handwriting with threats against the deceased. Caldwell 
 V. State, 28 Tex. App. 566. 
 
 In Freeman v. State (Tex.), 72 S. W. looi, the wadding of a 
 gun fired by the defendant was found to be portions of a news- 
 paper, the rest of which was still in the defendant's house. 
 
 Other Ci'imes. 
 
 Evidence of another crime may be given to prove identity. 
 Goersen v. Com., 99 Pa. 3S8. 
 
 The commission of other crimes by the defendant may be 
 proved to identify him as the doer of the act charged. People 
 V. Taylor, 136 Cal. 19 ; Yarborough i\ State, 41 Ala. 405 ; Foster 
 V. State, 63 N. Y. 619. 
 
 To identify one who got a note by fraud, it is permissible to 
 show that defendant got other notes from other persons by fraud. 
 Brown v. Schock, 77 Pa. 471.
 
 202 // AMERICAN NOTES. 
 
 " The next assignment of error complains of the testimony of 
 William ]. Horner, lie was the tenant of David Berkey, occu- 
 ])ying his farm. In the morning after the robbery, he discovered 
 that his barn hail been broken open during the night and a pair 
 of horses, bridles, a saddle, and a blanket had been taken away. 
 He also {oum\ that tiie straj)s had been removed from his fly nets 
 and were not in the barn. The straps were soon after discovered 
 at Berkey's house, where they had been used to bind his limbs 
 while he was undergoing torture. The horses, with the other 
 stolen property, were found later in the morning some eight or 
 nine miles away in a field at the side of the road leading from 
 Berkey's house to the home of the defendants. An examination 
 of the ground about Berkey's house showed that during the night 
 the horses had been tied and fed near by, and had been ridden 
 by the robbers along the highway to the point at which they were 
 found, where it was evident they had been abandoned, their 
 riders completing their journey on foot. The testimony of Flor- 
 ner was offered for the purpose of laying those facts before the 
 jury. It was objected to because it related to another offence 
 than that for which the defendants were indicted, and because it 
 was not proposed to show that the defendants were seen in pos- 
 session of the horses. But the relevancy of this testimony did 
 not depend on whether it tended to show the commission of an- 
 other crime, but on whether the facts were so connected with the 
 crime under investigation as to throw any light upon its history. 
 We think it clear that this testimony was explanatory of facts that 
 were before the jury, and that it tended to show how, and by 
 what route, the robbers fled from Berkey's house ; and how it was 
 possible for the defendants to have been seen so early in the 
 morning of the 3d of June at points where witnesses placed them, 
 consistently with the allegation of the commonwealth that they 
 were the perpetrators of the crimes at Berkey's house." Com. 
 z'. Roddy, 184 Pa. 274, 2S8. 
 
 Footprints. 
 
 Footprints about the scene of the crime, or leading to or 
 from it, may be shown in evidence to correspond with the feet or 
 shoes of the accused. Young v. State, 68 Ala. 569; Jones v.
 
 AMERICAN NOTES. 202 i 
 
 State, 6t, Ga. 395 ; Gilmore v. State, 99 Ala. 154; Whetston v. 
 State, 31 Fla. 240. 
 
 la Com. z'. Sturtivant, 117 Mass. 122, where the defendant's 
 shoes were shown to fit certain tracks, the defendant denied 
 having worn them recently. The State then showed that they had 
 been recently washed, as tliough to remove mud on them. 
 
 To identify defendant as a burglar, it may be shown that he was 
 seen running from the place and that his shoe tracks corresponded 
 with tracks about the place. People v. Rowell, 133 Cal. 39. 
 
 Defendant was proved to have been the one who had stolen 
 certain alfalfa seed by foot tracks about the granary, the tracks of 
 two horses toward his house, an envelope addressed to defendant 
 found near the tracks, and by the fact that he had later sold some 
 alfalfa seed in sacks identified as belonging with the granary. 
 State V. Tucker (Ore.), 61 Pac. 894. 
 
 Where the accused had started barefoot toward a building with 
 the intention of setting it on fire, evidence of the print of a bare 
 foot several hundred yards from the burned house, but in the 
 direction accused was going, was admitted. Ethridge v. State 
 (Ala.), 27 So. 320. 
 
 In State v. Willmeier (Iowa), 72 N. W. 275, to identify defend- 
 ant as having set a barn on fire, tracks similar to his were testified 
 to, although they were not discovered for nearly a week, when the 
 snow covering them had melted. 
 
 A father was identified as the murderer of his daughter by blood 
 prints from her bed to his room and by the facts that there were 
 no tracks whatever leading from the house and the ground was 
 soft. A motive and other circumstances were also shown. But- 
 ler V. State (Ark.), 63 S. W. 46. 
 
 Defendant was proved to have set fire to some buildings by 
 proof that tracks which his shoes might have made led to his 
 house, and further proof of motive on his part. State v. Shines, 
 125 N. C. 730. 
 
 In Newman v. State, 32 Tex. Cr. R., part of the evidence on 
 which the defendant was convicted was as follows : The defend- 
 ant's horse was seen hitched not far from the house of the de- 
 ceased on the night of the murder, peculiar tracks which fitted 
 defendant's shoes led from the house to the place where the horse 
 had been tied, and spots that appeared to be blood were found 
 on defendant's shirt.
 
 202J 
 
 AMERICAN NOTES. 
 
 Tracks from the place of a burglary to a camp where defend- 
 ant had been. Holiciigshead v. State (Tex.), 67 S. W. 114. 
 
 Voice and peculiar track used to identify defendant. I'atton 
 V. State, 117 Ga. 230. 
 
 Peculiar tracks which defendant's shoes exactly fitted used to 
 prove defendant guilty of arson. Weeks v. State (Ga.), 30 S. E. 
 
 252. 
 
 Defendant cannot be compelled to make a footprint for com- 
 parison. Stokes V. State (Pa.), 8 Leg. Gaz. 166. 
 
 Horse and IVagon Tracks. 
 
 In Cook 7'. State (Miss.), 28 So. 833, the defendants were 
 traced from the scene of the burglary to their home by the track 
 of a wagon having a wobbly wheel and the track of a horse with a 
 broken hoof. They were shown to have such a wagon and such 
 a horse. 
 
 Defendant was identified as having stolen bales of cotton by 
 proof that there were wagon tracks from the place where the bales 
 had been hidden to the defendant's house, that his wagon was 
 muddy, and that his team was sweaty. Cole v. State (Miss.), 
 4 So. 577. 
 
 In Lancaster v. State, 36 Tex. Cr. R. 16, it appeared that the 
 defendant had been seen driving in a single buggy toward the 
 home of the deceased ; that the tracks about the scene of the crime 
 showed that such a horse and buggy had been driven near where 
 the corpse lay, where the occupant had got out and walked to the 
 corpse, then to the house, and back ; that the shoe tracks of the 
 horse were peculiar, and were like those of the horse defendant 
 had driven. The defendant was convicted. 
 
 Tracks — Evidence in Rebuttal. 
 
 Tracks to a building which defendant was accused of blowing 
 up were shown not to have been his by the fact that they were 
 made by broad-toed shoes while his shoes had narrow toes. Lan- 
 ders V. State (Tex.), 47 S. W. 1008. 
 
 In Grant v. State (Tex.), 58 S. W. T025, the State showed that 
 a wagon containing oats stolen from a granary and drawn by a mule 
 and a horse could be traced from the granary to near the defend- 
 ant's house, and that there were shoe tracks about the size of
 
 AMERICAN NOTES. 202 k 
 
 defendant's shoes. The defendant proved that others beside him- 
 self owned a wagon, a mule, and a horse, and that others wore 
 similar shoes. 
 
 Where defendant's voice was thought to be recognized as that 
 of a burglar and where tracks near by were identified as his, he 
 proved that he had that day loaned his shoes to another, who had 
 since disappeared. Identification not sufficient. Porter v. State 
 (Tex.), 50 S. \V. 380. 
 
 Tracing by Bloodhound. 
 
 It may be shown that a bloodhound, put on the track of a crim- 
 inal, followed the track to the accused. Simpson z;. State, in 
 Ala. 6 ; Pedigo v. Com., 103 Ky. 41. 
 
 Evidence of the tracking of an alleged criminal by a blood- 
 hound is admissible in a burglary case on the question of identity. 
 State V. Hall, 4 Low. Dec. (Ohio) 147, 3 Nisi Prius, 125. And 
 the rule is the same in a murder case. State v. Brooks, 9 West. 
 Law Journal, 109; Williams v. State (Ark.), 16 S. W. 816. 
 
 Mea?is of Idcntijicaiion in General. 
 
 In the case of People v. How, 2 Wheel. Crim. Cas. (N. Y.) 
 4[0, the defendant was convicted of murder on the following evi- 
 dence, although he was not seen and his voice was not recognized. 
 He had had business trou'oles with the deceased and had threat- 
 ened to kill him if he did not settle. He was seen shortly before, 
 trying to conceal under his coat something that might have been 
 a gun. He was gone from home at just the time of the murder, 
 and returned at a time possible to the actual murderer. His 
 horse, found blanketed and wet with sweat, he falsely said had 
 been sick. A man who might have been the defendant was seen 
 riding toward the home of the deceased, and shortly after the time 
 of the crime was seen riding rapidly back. The defendant was 
 shown to have a rifle with the barrel cut short off, so that it might 
 be concealed under the coat. The rifle showed traces of having 
 been fired lately, it had horsehair on it, and the priming was damp. 
 The rifle carried a ball like that found in a beam, where it had 
 lodged after passing through the deceased. The defendant later 
 confessed his guilt. 
 
 In State ik Orr, 64 Mo. 339, the defendant was shown to be 
 the murderer of the deceased by the following evidence : He was
 
 202 / AMERICAN NOTES. 
 
 shown to have loft home on the day of tlic crime chessetl in a bhie 
 army overcoat and riding a dark horse with a partner in the enter- 
 prise ricHng a white horse. One of them had a square gin bottle. 
 They were seen on the road not far from the home of the deceased. 
 Near by two horses had been hitched to trees, and that one of 
 them was white was shown by hair rubbed on the bark. A square 
 gin bottle lay on the spot. Shortly after the crime two men an- 
 swering their description were seen riding away rapidly. Later 
 the defendant had much money, while before he had none. He 
 spoke of it as blood money. He did not try to explain his absence 
 from home on that day. 
 
 In the case of Cicely v. State, 13 Smedes «& M. (Miss.) 203, to 
 identify the accused as the murderer of a whole family, it was 
 shown that there were bloody footprints on the floor and one set 
 of footprints leading from the house, all of which corresponded 
 with the defendant's feet ; that the murder was done with a broad- 
 axe, and that on the dress of the accused were many specks and 
 spots of blood ; that the defendant had secreted on her person 
 the purse of the deceased with money in it, and that the pocket of 
 deceased's trousers was bloody as from a bloody hand thrust in ; 
 that defendant did not know the amount of money in the purse. 
 
 Defendant identified by evidence of his presence in the neigh- 
 borhood, tracks leading to his home, and his possession of a 
 weapon. Howard 27. Com., 24 Ky. Law Rep. 950, 70 S. W. 295. 
 
 S!/ffi<:ie?icy of Identification. 
 
 An example of an identification held to be sufficient is to 
 be found in Com. v. Roddy, 184 Pa. 274, 289. The following is 
 the deceased's testimony : " Two men came into my bedroom. 
 I asked them what they wanted here, and one of them said, 
 ' Money, by God, and we will have it.' Both men had revolvers, 
 and said, ' Do you see these? ' I said, ' Yes.' They told me if I 
 had any prayers to say I was to say them, that they would shoot 
 me. I told them to shoot, but they did not. Then they tied me, 
 both hands and feet, and carried me out of bed into a rocking- 
 chair and hit me in the mouth, knocking a tooth loose. Then 
 they ransacked the safe. I told them my money was in my vest. 
 They got it; it was about $125 in paper and silver. They burned 
 my feet some before getting my money. They continued to burn
 
 AMERICAN NOTES. 202 m 
 
 my feet, demanding more money or government bonds. They 
 first burned my feet with paper ; afterwards with oil lamps and 
 tallow candles. They ransacked the house from cellar to attic. 
 They went to the cellar, brought up pies, cakes, and milk, and eat 
 and drank. Then they left my house, and I am satisfied the two 
 Roddy boys, brought to my house by the officers, are the same 
 that robbed and tortured me." This is a vivid statement of the 
 occurrences of that night, showing the opportunity Berkey had to 
 see his torturers, to know their voices, their figures, their move- 
 ments, their eyes, the color of their hair, and their relative size 
 and manners. Every peculiarity of each of them must have been 
 literally burned into the memory of both David Berkey and his 
 wife. They were brought to the house of their victim. He 
 looked at them to see if they were the same men he had seen on 
 the night of the 2d of June. His conclusion is, " Yes. I am 
 satisfied they are the same men. My mind is at rest on the sub- 
 ject. I have no doubt." This was a distinct identification, and 
 plainly admissible. 
 
 . Testimony that the offender " looked pretty near like " the 
 accused is not sufficient identification. Com. v. Snow, 14 Gray 
 (Mass.), 3S5. 
 
 Positive direct evidence of the identity of the accused is not 
 necessary if the jury are satisfied of the fact. Com. ?', Cunning- 
 ham, 104 Mass. 545. 
 
 In the interesting case of Udderzook v. Com., 76 Pa. 340, the 
 motive for murder was shown to be the desire to obtain insurance 
 money. The circumstances were as follows : 
 
 The defendant and the deceased conspired to defraud certain 
 insurance companies. In pursuance of the scheme, the deceased, 
 W. S. Goss, insured his life for $25,000, Goss was thereafter last 
 seen in his shop in company with defendant and a neighbor. 
 After they had gone Goss's shop burned, and a body supposed 
 his, was found. The beneficiary in the policies, aided by her 
 brother-in-law, the defendant, tried to collect the money. More 
 than a year later the defendant was seen in company with one 
 A. C. Wilson at Jennerville, Pa. In the evening they left that 
 town together, driving in the direction of Penningtonville. The 
 defendant reached Penningtonville alone, and his companion was 
 never afterwards seen alive. When the defendant was asked what 
 had become of his companion, he replied that he had left him at
 
 20J ;/ AMERICAN ^•OTES. 
 
 Parkersburg. Later this companion's body was found, cut into 
 pieces, and i)uii(.d in two holes in the woods between Jennerville 
 and Pt-niiingionville. The question was to identify this body as 
 that of W. S. Goss and to show that he and A. C. Wilson were 
 one and the same. Wilson's movements were traced from about 
 the time of Goss's disappearance, and he was shown to have lived 
 with great privacy. At Jennerville he and the defendant had 
 showed a desire for great privacy. A witness identified a photo- 
 graph of Goss as being also that of Wilson. Letters written by 
 AVilson were in the handwriting of Goss. He wore a peculiar 
 ring belonging to Goss. Wilson had on one occasion recognized 
 one A. C. Goss as his brother and was shown to have corresponded 
 with him. Wilson and Goss were alike drunkards. The jury 
 found these circumstances sufificient to identify the body found 
 as that of A. C. Wilson and of W. S. Goss also, and the de- 
 fendant was convicted. 
 
 To show that defendant was guilty of arson, it was shown that 
 tracks might have been made by No. 9 shoes and his were that 
 size, that in crossing a ditch the criminal had fallen on his knee 
 and elbow, and that defendant's clothing was slightly discolored at 
 those places. Held not sufficient to identify. People v. Done- 
 burg, 64 N. Y. Supp. 438. 
 
 Although defendant's tracks were peculiarly like those found in 
 the snow leading from a burned building toward but not near 
 defendant's home, he was not sufficiently identified. Green v. 
 State, III Ga. 139. 
 
 Bertillon Method of Ide?iti/yifig Criminals. 
 
 As to methods of identifying persons, the following, taken from 
 the ISLiryland Law Record and found in 9 Grim. Law Magazine, 
 372, is of interest : 
 
 '•' The latest method of identifying prisoners which has been 
 introduced into France by M. Alphonse Bertillon, and which is 
 now successfully practised, not only in the chief French prisons, 
 but in Russia and Japan as well, is the exact measurement of the 
 prisoner on his arrival at gaol. His waist, the length and width 
 of the head, the left middle finger, the left foot, the outstretched 
 arms, and three other fingers on the left hand, the left arm from 
 the elbow to the wrist, and the length and width of the ear are
 
 AMERICAN NOTES. 2020 
 
 rneasured, and the color of the eyes and any particularities are 
 noted down. A photograph is also immediately taken, and by 
 these means the many mistakes which have been made by trust- 
 ing to a photographer only are avoided. The fact that during 
 the two years since this mode has been in operation eight hundred 
 and twenty-six habitual criminals who presented themselves under 
 an assumed name have been identified in France, shows that M. 
 Bertillon's method is superior to any other. It is stated that 
 habitual criminals, particularly English pickpockets, are so con- 
 vinced of the infallibility of the method that they will on no 
 account submit to the measurement, and offer violent resistance 
 whenever the attempt is made to measure them. In such cases 
 we are assured that it is nearly always sufficient to measure the 
 inside of the hat and the boots." 
 
 Personal Peculiarities for Identification. 
 
 The following story of the identification of a criminal is derived 
 from the London Tid-Bits : A small lodging-house in the City 
 Road was one morning found to be the scene of a mysterious 
 crime. The occupant of the ground floor had been discovered 
 seated by the table dead, his head resting on his folded arms, 
 and a small penknife buried in his temple. When the police 
 arrived the body had not been moved, but in spite of their careful 
 search, no clue to the crime revealed itself. That he was not 
 alone on the preceding night, a couple of glasses and an empty 
 whiskey bottle clearly testified. 
 
 Dornton, the detective, first interviewed the landlord. The 
 deceased could not have returned until very late. He frequented 
 a public sporting-house in the neighborhood, and was believed to 
 obtain a living by betting. 
 
 The detective turned over the letters of the deceased. Only 
 one seemed of any importance, and that a short, ill-spelt note, 
 naming an outsider as the winner of the St. Leger, and advising 
 the deceased to back it heavily. The race had been run the 
 preceding day, and the outsider had won. If the murdered man 
 had acted on his correspondent's advice he should be in pos- 
 session of a considerable sum of money. But with the exception 
 of a few coppers, nothing of value was found.
 
 202/ AMERICAN NOTES. 
 
 At last, (Icsjiairing of obtaining any further information on the 
 scene, Dornton was about to close his investigation. 
 
 As he gave one final glance before departing, something in the 
 threadbare carpet caught his attention. Stooping, he picked up 
 a semi-circular i)icce of coarse finger-nail, marked by a fracture 
 extending completely across it, which had continued, probably, 
 some distance along the entire nail. Round this the detective 
 wove his theory of the crime. 
 
 The deceased, already probably half drunk, had brought with 
 him, to finish their carousal, some casual acquaintance. While 
 the host was becoming more and more unconscious, his guest, 
 drinking but little, determined to rob him of his day's winnings. 
 Irritated by the broken nail catching in his clothing, he with a 
 penknife trimmed it as closely as possible ; then, seeing his com- 
 panion completely at his mercy, murdered him, 
 
 Carefiilly guarding this slight scrap of evidence, after a moment's 
 reflection, Dornton made his way to the public house mentioned 
 as having been frequented by the deceased. His attention was 
 speedily concentrated on one man. In spite of the assumed 
 jauntiness of his manner, the latter was decidedly ill at ease, and 
 his eyes continually wandered to the door. The low felt hat and 
 cheap kid gloves concealing his hands had the appearance of 
 having been recently purchased, though the state of his boots and 
 clothing suggested anything but an air of affluence. 
 
 Under the pretence of obtaining a light, Dornton moved, glass 
 in hand, to where the object of his suspicions carelessly lolled, and 
 stumbling, as if by accident, completely saturated the gloves 
 with its contents. The stranger angrily tore them ofif, and, on 
 the middle finger of the left hand, revealed to the detective's 
 watchful eye a short, coarse nail, broken nearly to the quick. 
 
 A few minutes later he was inside a cab, journeying to the 
 police station, and his full confession at the inquest gave Dornton 
 the satisfaction of having his theory completely verified. 
 
 Identification of Articles of Property. — Means of 
 Identifybig Property. 
 
 To identify certain watches in possession of defendants as the 
 ones stolen, the owner of the store may give in evidence the bills 
 showing the numbers on the watches. State v. Fitzgerald, 72 
 Vt. 142.
 
 AMERICAN NOTES. 202 q 
 
 " A recent case occurred in this Court where one was indicted 
 for murder by stabbing the deceased in the heart with a dirk- 
 knife. There was evidence tending to show that the prisoner 
 had possession of such a knife on the day of the homicide. On 
 the next morning, the han lie of a knife, with a small portion of 
 the blade remaining, was found in an open cellar near the spot. 
 Afterwards, upon -x post mortem examination of the deceased, the 
 blade of a knife was found broken in his heart, causing a wound 
 in its nature mortal. Some of the witnesses testified to the iden- 
 tity of the handle, as that of the knife previously in the possession 
 of the accused. No one, probably, could testify to the identity of 
 the blade. The question, therefore, still remained, whether that 
 blade belonged to that handle. Now, when these pieces came to 
 be placed together, the toothed edges of the fracture so exactly 
 fitted each other that no person could doubt that they had be- 
 longed together, because from the known qualities of steel, two 
 knives could not have been broken in such a manner as to pro- 
 duce edges that would so precisely match." Shaw, C. J., in 
 Com. V. Webster, 5 Cush. 295, 314. 
 
 Where the defendant is charged with the larceny of gold coins, 
 it may be proved that there were found in his possession the 
 same number of gold coins as was taken from the owner, and 
 that they were of the same denominations. People v. Piggott, 
 126 Cal. 509. 
 
 Where the handle of the hammer used in a homicide was found 
 on the premises of the defendant, and much gold coin belonging 
 to the deceased was found in possession of the wife of defend- 
 ant, while at the same time it was shown that defendant had had 
 no work for some time, and an attempted alibi was broken down, 
 the evidence was held sufficient to sustain a conviction. State v. 
 Craemer, 12 Wash. 217. 
 
 An illiterate witness may identify a document by its general 
 appearance. Com. v. Meserve, 154 Mass. 64. 
 
 Before possession of the stolen goods can be used as the basis 
 of an inference of guilt, the goods must be proved to be identi- 
 cal with these belonging to the party injured by the crime. Yet 
 such identification need not be absolute. It would be sufficient 
 to show that they are of the same kind as the goods stolen, and 
 were found with other property stolen at the same time that Ls 
 positively identified. Dillon v. People, i Hun, 670.
 
 202 r AMERICAN NOTES. 
 
 The identification of stolen goods by the owner may be suf- 
 ficient, even though he was allowed to inspect them before being 
 rc(|uired to describe them. State v. Lnll, 37 Me. 246. 
 
 The identification of a shirt is sufficient when a witness testi- 
 fies that she made it herself and knows the sewing. Lancaster v. 
 State, 91 Tenn. 267. 
 
 Laundry Marks. 
 
 The contents of a valise may be identified as belonging to a 
 certain deceased person by comparing laundry marks on clothing 
 in the valise with similar marks on clothing left by the deceased 
 in his trunk. State v. Lucey (Mont.), 61 Pac. 994. 
 
 Label on Barrels. 
 The label on a barrel of beer was admitted to identify the bar- 
 rel and the place from whence it came. Com. v. Collier, 134 
 
 Mass. 203. 
 
 Color and Smell of Alcohol. 
 
 To prove an arson, a witness may testify as to the contents of 
 a bottle found near by, that she knew the contents were alcohol 
 by the color and smell. People v. Fitzgerald, 137 Cal. 546. 
 
 Color of Paper. 
 Where it was shown that the defendant was given a certain 
 check and that when arrested he had chewed a bit of paper be- 
 yond recognition, the chewed-up wad may be shown to be of the 
 same color as other checks like the one given him. People v. 
 Considine, 105 Mich. 149. 
 
 Cattle Brands. 
 
 In many western States and in Canada there are statutes mak- 
 ing the presence of a registered brand on cattle evidence as to 
 the ownership of such cattle. Colo. Mills Ann. Stat., §§ 4240, 
 4251. But an unrecorded brand may be admissible as a mark 
 of identification. Chestnut v. People, 21 Colo. 512. 
 
 To identify a certain hide as that of a cow that had been stolen, 
 it is proper to put in evidence pieces of the hide, which, when 
 put with the main portion, tend to make out the brand. Hen- 
 dricks V. State, 56 S. W. 55 (Tex.).
 
 AMERICAN NOTES. 202 S 
 
 A recorded brand is evidence of the ownership of an animal 
 marked with the brand. Alexander v. State, 24 Tex. App. 126. 
 
 Earmarks on animals alleged to have been stolen, testified to by 
 the claimant as his mark, are some evidence of ownership. 
 People V. IJolanger, 71 Cal. 17. 
 
 A brand on a horse may be proved to establish identity of the 
 horse, even though it is not the brand of the alleged owner. 
 Horn V. State. 30 'I'ex. App. 541. 
 
 Where defendant was charged with stealing a certain horse 
 which he had sold, the only evidence that the horse sold was the 
 horse stolen was that it bore the same brand. The evidence of 
 identity was not sufficient, because it was shown that the owner of 
 the stolen horse had sold to third parties other horses with his 
 brand on them. Horn v. State, 30 Tex. App. 541. 
 
 A mule alleged to have been stolen was identified by a pecul- 
 iarly shaped brand. State v. Hill, 96 Mo. 35 7. 
 
 Bullets, Cartridges^ and Gun-wadding. 
 
 Winchester rifle shells marked " W. R. A. Co. W. C. F. 40-65 ' 
 were used to identify the defendants as having shot the deceased 
 in People v. Gibson, 106 Cal. 458. 
 
 Where evidence tends to show that the bullet causing death 
 of deceased was of 38-caliber, the defendant may be shown to 
 have had a 38-caliber revolver at the time of the shooting (State 
 V. Barrett, 40 Minn. 65) ; or that in the defendant's trunk were 
 found cartridges of the same caliber. People v. Minisci, 12 N. Y. 
 St. Rep. 719. 
 
 In Freeman v. State (Tex.), 72 S. W. looi, the wadding of a 
 gun fired by the defendant was found to be portions of a news- 
 paper, the rest of which was still in the defendant's house. 
 
 It may be shown that on defendant's premises were found 
 the frame of a pistol still smelling of powder, and several car- 
 tridges, the bullets in which were like that with which deceased 
 was killed, even though the cylinder be not found. People v. 
 Smith, 172 N. Y. 210. 
 
 Possession of Property Obtained by the Crime. 
 
 In Com. V. Roddy, 184 Pa. 274, it was shown that two weeks 
 before the murder and robbery, the deceased had in his posses-
 
 202 / AMERICAN NOTES. 
 
 sion a ten-dollar Confederate bill, and that after the crime the 
 defendant Roddy had a like bill and destroyed it. 
 
 "The evidence, together with Roddy's declaration about the 
 bill or note, how he came by it, and why he destroyed it, was 
 relevant upon the question of identity. It was not conclusive 
 upon the question, but it related to it, and with other facts relat- 
 ing to the same subject was properly submitted to the jury as part 
 of the chain of circumstances tending to identify the defendants 
 as the perpetrators of the crimes committed." 
 
 Defendant identified as a burglar by a cut on his liand (the 
 burglar had broken through a window), by having been seen 
 that day with another who was killed at the scene of the crime, 
 and by the fact that he wore shirts taken from another house 
 while the dead burglar wore shoes stolen there. People v. Hogan 
 (Mich.), 8i N. W. 1096. 
 
 The State may show that the stolen gun was found in the road 
 near where the defendant had been when approached by the 
 officer. HoUengshead v. State, 67 S. W, 114. 
 
 To identify defendant as the owner of a truck in which 
 stolen goods were found, the State may show that he claimed 
 clothing in it. State v. Yandle, 166 Mo. 589. 
 
 To identify a shirt as having belonged to the defendant, where 
 a witness had sworn that it did not belong to the defendant, it 
 may be shown that she gave it to a messenger who asked for the 
 defendant's shirt. State v. Houser, 28 Mo. 233. 
 
 Insiniments with 7vliich Crime was Committed. 
 
 The defendant was shown, in Bower v. State, 5 Mo. 364, 32 
 Am. Dec. 325, to have had a cudgel in his possession which was 
 later found near the body of the deceased and with which the 
 killing had been done, and was shown further to be wearing the 
 deceased's hat while his own was near by the body. 
 
 Where it has been shown that certain tools were used in a 
 burglary, possession of such tools is competent evidence to fasten 
 the crime upon the possessor. People v. Winters, 29 Cal. 658; 
 State V. Morris, 47 Conn. 179 ; State v. Harrold, 38 Mo. 496. 
 
 To identify the deceased as a burglar it was shown that the 
 tools used came from his place of residence. People v. Larned, 
 7 N. Y. 445-
 
 AMERICAN NOTES. 202 u 
 
 The presence of burglar's tools on (lefemlanl's farm may be 
 shown wlien he was the only occupant of such farm. People v. 
 Gregory (Mich.), 90 N. W. 414. 
 
 The State may introduce in evidence, to prove defendant guilty 
 of arson, a flask with kerosene in it marked as with bluing, and 
 may show that defendant's wife previously hail this flask with 
 bluing in it. Morris v. State (Ala.), 27 So. 336. 
 
 Where a knife was found at the scene of a burglary, and de- 
 fendant was shown to have said the next day that he had lost 
 his knife, the identifi :ation of the knife as his by this and other 
 testimony was held to be sufficient. Bundick v. Com., 97 Va. 
 783, 34 S. E. 454. 
 
 Defendant was identified as a burglar by a case-knife, the rim 
 part of which was in his possession, but the broken point was 
 wedged in the door-jamb of the burglarized house. White v. 
 People, I 79 111. 356. 
 
 A bottle of powder found on the road may be introduced to 
 prove safe-blowing, when it is shown that defendant had a bottle 
 at starting and none at the end of the journey. Edmunds v. 
 State (Tex.), 6t, S. W. 871. 
 
 Where a mask was found near a window through which a shot 
 had been fired, it may be shown that the defendant was shown 
 the mask without saying where it had been found and asked 
 where he got it, and that he replied that his children had found 
 it and that it had once had a black nose that had been torn off. 
 Murphy v. People, 63 N. Y. 590. 
 
 Question for the yury. 
 
 The identification of stolen property is for the jury, and it is 
 error to charge that a banknote stolen " was positively identi- 
 fied." Hill V. State, 17 Wis. 675, 86 Am. Dec. 736. 
 
 • Proof of Handwriting. 
 
 Opinions of Persons Acquainted with the Handwriting. " When 
 there is a question as to the person by whom any document 
 was written or signed, the opinion of any person acquainted 
 with the handwriting of the supposed writer, that it was or was 
 not written or signed by him, is deemed to be a relevant fact. 
 
 " A person is deemed to be acquainted with the handwriting of
 
 202 V AMERICAN NOTES. 
 
 another person when he has at any time seen that person write, 
 or when he has received documents purporting to be written by 
 that person in answer to documents written by himself or under 
 his auiliority and addressed to that i)erson, or when, in the ordi- 
 nary course of business, documents purporting to be written Ijy 
 that person have been habitually submitted to him." Stephen's 
 Dig. Evid., Art. 51. 
 
 A witness may not testify as to his knowledge of a signature 
 made by making a mark. Shinkle v. Crock, 17 Pa. 159. 
 
 The testimony of a person as to his own signature is of no 
 higher character than the testimony of another who is acquainted 
 with his handwriting. Lefferts v. State, 49 N. J. L. 26. 
 
 Knowledge of Hand Gained from Correspondence. 
 
 A witness who has become acquainted with handwriting 
 through an official correspondence is competent to testify as to 
 its genuineness. Com. v. Smith, 6 S. & R, 568; U. S. v. Simp- 
 son, 3 P. & W. 437- 
 
 One who has corresponded with a person is a competent 
 witness as to his handwriting (\Vest v. State, 2 Zab. (N. J.) 212 ; 
 Smith t;. Walton, 8 Gill (Md.), 77; Edelen v. Bennett, 8 Gill 
 (Md.), 87) ; but not if he has merely seen writings addressed 
 to others. Goldsmith v. Bane, 3 Hal. (N. J.) 87. 
 
 One Who Has Seen Him Write. 
 
 Diggin's Estate, 68 Vt. 19S ; Com. v. Hall, 164 Mass. 152; 
 State V. Harvey, 131 Mo. 339 ; Karr v. State, 106 Ala. i ; State 
 V. Farrington, 90 Iowa, 673. 
 
 It is enough that he has seen him write once to render the 
 testimony competent. Com. v. Nefus, 135 Mass. 533 ; Keith v. 
 Lathrop, 10 Cush. (Mass.) 453; Brigham v. Peters, i Gray 
 (Mass.), 139 ; McNair v. Com., 26 Pa. St. 388 ; State v. Stair, 87 
 Mo. 268 ; Smith v. Walton, 8 Gill (Md.), 77 ;'Edelon v. Bennett, 
 8 Gill (Md.), 87. 
 
 One who has seen a person write is a competent witness as to 
 his handwriting (West v. State, 2 Zab. (N. J.) 212; Cook v. 
 Smith, 30 N. J. L. 387) ; but not when he saw the person write 
 for the purpose of thereafter being a witness. Whitmore v. 
 Corey, I Harr. (N. J.) 267.
 
 AMERICAN NOTES. 202 w 
 
 A witness was held to be competent who had seen a person 
 write his name twice thirty-two years before and once twenty- 
 three years before. Wilson r. Van Leer, 127 Pa. 371. 
 
 Comparison of Handwriting by Experts and the jfury. 
 
 In the various States of the Union, there can be said to be no 
 general i-ule as to the comparison of disputed writings with 
 genuine ones, except the elementary doctrine that some compar- 
 ison made be made both by experts and by the jury. There are 
 many rules laid down as to the conditions under which such com- 
 parison may be made and as to the writmgs that may be used as 
 a standard. Such evidence is, of course, strictly circumstantial 
 in character. 
 
 . Sometimes the writing to be used as the standard of compar- 
 ison is required to be admitted to be genuine, sometimes its 
 genuineness is left to the jury, and more often its genuineness is 
 a preliminary question for the Court. Sometimes only such 
 writings as are already before the jury may be used as a standard, 
 but often other writings are admitted. 
 
 Many States have settled the law on this point by statute, and 
 nearly all the remaining States have attempted to do so. 
 
 " Comparison of a disputed handwriting with any writing 
 proved to the satisfaction of the judge to be genuine is permitted 
 to be made by witnesses, and such writings, and the evidence of 
 witnesses respecting the same, may be submitted to the Court 
 and jury as evidence of the genuineness or otherwise of the 
 writing in dispute. This paragraph applies to all courts of judi- 
 cature, criminal or civil, and to all persons having by law, or by 
 consent of parties, authority to hear, receive, and examine 
 evidence." Stephen's Dig. Evid., Art. 52. 
 
 This rule is statutory in England. 
 
 Substantially the English doctrine is held in Koons v. State, 36 
 Ohio St. 195 ; State v. Zimmerman, 47 Kan. 242 ; Com. v. Andrews, 
 143 Mass. 23. 
 
 Expert opinion is admissible to prove handwriting. Travis v. 
 Brown, 43 Pa. 9 ; Fulton v. Hood, 34 Pa. 365 ; Burkholder v. 
 Plank, 69 Pa. 225 ; Ballentine v. White, 77 Pa. 20 ; West v. State, 
 2 Zab. (N. J.) 212.
 
 202 X AMERICAN NOTES. 
 
 Expert testiinony as to handwriting is admissible, altliougli the 
 entire knowledge of the expert on tiie subject is derived from 
 comparison of the disputed writing with writing admitted to be 
 genuine. Miles v. Loomis, 75 N. Y. 287 ; Moody v. Rowfll, 17 
 Pick. 490; Slate v. Shinborn, 4O N. H. 497 ; Calkins v. State, 14 
 Ohio St. 222. 
 
 An expert may give his oj^inion as to wliether a certain speci- 
 men is in a natural or a simulated hand. Com. v. Webster, 
 5 Cush. 295 ; Moody v. Rovvell, 17 Pick. 490; Reg. v. Shepperd, 
 I Cox Cr. Cas. 237. 
 
 In Com. V. Webster, 5 Cush. 295, evidence was introduced of 
 three anonymous letters alleged to have been written by the ac- 
 cused, addressed to the city marshal, and attempting to divert 
 suspicion away from the medical college where defendant was 
 professor of chemistry. Expert testimony was allowed to show 
 that the letters were not written with a pen or with a brush, and 
 yet that they were in defendant's handwriting. It was further 
 shown that a small pine stick, about six inches long, and as large 
 as a goose-quill, and having a small wad of cotton which had 
 been dipped in ink wound round one end, was found in the de- 
 fendant's laboratory. 
 
 Comparison of genuine writings with the one questioned may 
 be made by the jury. Rockey's Estate, 155 Pa. 453. 
 
 As to the use of other writings for comparison to prove the 
 genuineness of a writing in dispute, the Court says, in State v. 
 Hastings, 53 N. H. 461 : "It is to be received, and then the 
 jury are to be instructed that they are first to find, upon all the 
 evidence bearing upon that point, the fact whether the writing 
 introduced for the purpose of comparison, or sought to be used 
 for that purpose, is genuine. If they find it is not so, then they 
 are to lay this writing, and all the evidence based upon it, entirely 
 out of the case ; but if they find it genuine, they are to receive 
 the writmg, and all the evidence founded upon it, and may then 
 institute comparisons themselves between the paper thus used 
 and the one in dispute, and settle the final main question whether 
 the signature in dispute is or is not genuine." 
 
 Qualification of a handwriting expert. Wheeler & Wilson Co. 
 V. Buckhout, 60 N. J. L. 102. 
 
 Cashiers and tellers of banks, whose business it is to compare 
 handwritings and to detect forgeries and counterfeits, are gener-
 
 AMERICAN NOTES. 202 y 
 
 ally held to be qualified experts on the subject of handwriting. 
 Lyon V. Lyman, 9 Conn. 59 ; State v. Phair, 48 Vt. 366 ; People 
 7). Hewitt, 2 Parker's Cr. Cas. 20 ; Dubois v. Baker, 30 N. Y. 
 
 355- 
 
 An expert is not competent when the basis of his testimony is 
 that he observed the person write several times for the purpose 
 of testifying later. Reese ?'. Reese, 90 Pa. 89. 
 
 Illegible Writing. 
 
 Expert testimony is admissible to determine whether a certain 
 written word is " J. my " or " July." Dresler v. Hard, i2r N. Y. 
 238. 
 
 Testing an Expert's Opinion. 
 
 A very broad liberality should be allowed as to the cross-exam- 
 ination of an expert to test the value of his opinion. Other 
 genuine writings, and writings not genuine, may be submitted to 
 him, and his opinion asked as to their authorship, with his reasons 
 in each case. Hoag v. Wright, 174 N. Y. 36 ; Browning v. Gos- 
 nell, 91 Iowa, 448. 
 
 And it is frequently allowed to test the expert by presenting to 
 him other documents already in the case. Harvester Co. v. 
 Miller, 72 Mich. 272 ; Thomas Z'. State, 103 Ind. 439 ; Brown v. 
 Chenoweth, 51 Tex. 477. 
 
 But it has been held improper to test an expert with fabricated 
 signatures not already in the case. Gaunt v. Harkness, 53 Kan. 
 405 ; Tyler v. Todd, 36 Conn. 222 ; Andrews v. Hayden, 88 Ky. 
 
 455- 
 
 Handwriting admittedly genuine may be handed to a witness 
 who has given his opinion as to the genuineness of another writ- 
 ing in order to test that opinion. Bank v. Armstrong, 66 Md. 
 
 113- 
 
 On cross-examination, a person's signature, written in court, 
 may sometimes be used, but only in cross-examination. Com. 
 V. Allen, 128 Mass. 46; U. S. v. Mullaney, 32 Fed. Rep. 370; 
 Bradford v. People, 22 Colo. 157. 
 
 Weight of Expert Evidence on Hand^vriting. 
 
 In Re Gordon's Will, 26 Atl. 277, the Court writes as follows : 
 " Handwriting is an art concerning which correctness of opinion is
 
 202 a AMERICAN NOTES. 
 
 susceptible of demonstration, ami I am fully convincetl that the 
 value of the opinion of every handwriting expert as evidence must 
 depend upon the clearness with which the expert demonstrates its 
 correctness. That demonstration will naturally consist in the indi- 
 cations of similar characteristics, or lack of similar characteristics, 
 between tiie disputed writing and the standards, and the value of 
 the expert's conclusion will largely depend upon the number of 
 those characteristics which appear or are wanting. The appear- 
 ance or lack of one characteristic may be accoimted to coinci- 
 dence or accident, but, as the number increases, the probability of 
 coincidence or accident will disappear, until convictions will be- 
 come irresistible. Thus comparison is rated after the fashion of 
 circumstantial evidence, depending for strength upon the number 
 and prominence of the links in the chain. Without such demon- 
 stration the opinion of an expert in handwriting is a low order of 
 testimony, for, as the correctness of his opinion is susceptible of 
 ocular demonstration, and it is a matter of common observation 
 that an expert's conclusion is apt to be influenced by his em- 
 ployer's interest, the absence of demonstration must be attributed 
 either to deficiency in the expert or lack of merit in his conclu- 
 sion. It follows that the expert who can most clearly point out 
 will be most highly regarded and most successful." 
 
 Evidence of handwriting experts is of low degree. Life Ins. 
 Co. V. Brown, 30 N. J. Eq. 193, 32 N. J. Eq. 809. 
 
 The opinion of a handwriting expert is of little weight unless 
 accompanied by an ocular demonstration. Gordon's Case, 50 
 N. J. Eq. 397, 52 N. J. Eq. 317. 
 
 Comparison of Hands by Lay Witnesses. 
 
 It is not permissible for a comparison of handwriting to be 
 made by a witness who is not an expert, for presumably the jury 
 is equally well qualified with him to make the comparison. Page 
 V. Homans, 14 Me. 482 ; Lowe v. Dorsett, 125 N. C. 301 ; Nil- 
 ler V. Johnson, 27 Md. 13 ; Sirother v. Lucas, 6 Pet. 766. 
 
 Refreshing Memory of Hajidwriting. 
 
 But though a lay witness may not express his opinion based 
 upon a comparison of hands, if he is competent as having seen
 
 AMERICAN NOTES. 202 a * 
 
 the person write whose signature is in dispute, or as having 
 corresponded with such person, then he may, for the purpose 
 of refreshing his memory, examine in court the specimens 
 which are the basis of his knowledge of the handwriting. 
 National Bank v. Armstrong, 66 Md. 115; Thomas v. State, 
 103 Ind. 419; McNair z'. Com., 26 Pa. 390; Smith v. Walton, 
 8 Gill, 85. 
 
 A witness may refresh his memory of handwriting by inspect- 
 ing a genuine paper, but he must testify independently of the 
 comparison. McNair v. Com., 26 Pa. t^S^. 
 
 Standard of Comparison. Writings be/ore the Jury. 
 
 Many States, in allowing a comparison of disputed writings 
 to be made by the jury or by experts, restrict the comparison to 
 writings already before the jury for other purposes. Snider v. 
 Burks, 84 Ala. 56 ; Miller v. Jones, 32 Ark. 343 ; Tubker v. 
 Hyatt, 144 Ind. 635; Brobston v. Cahill, 64 III. 358; State 
 V. Batson, 108 La. 479 (in crim. cases); People v. Parker, 67 
 Mich. 222. 
 
 Writings Already before the Jury afid Admittedly Genuine. 
 
 Some States also require that the standards of comparison shall 
 be admitted to be genuine, even though already before the jury. 
 Rogers v. Tyler, 144 111. 652 ; Geer v. M. L. & M. Co., 134 Mo. 
 85. (But see St. 1895, P- -^4) Rev. St. 1899, § 4679.) 
 
 The jury may compare a disputed handwriting with one ad- 
 mittedly genuine already in evidence for another purpose. Wil- 
 liams V. Drexel, 14 Md. 566. 
 
 Standard May be Proved Genuine. 
 
 But many States allow writings to be used by both experts and 
 the jury for comparison, if such writings have been satisfactorily 
 proved to be genuine, even though they are not already in the 
 case. State v. Stegman, 62 Kan. 476; Lyon v. Lyman, 9 Conn. 
 60; Maryland, Pub. Gen. L. 1888, Art. 35, §6; Moody v. 
 Rowell, I 7 Pick. 490 ; First Nat. Bk. v. Carson, 48 Neb. 763 ; 
 Mutual B. L. Ins. Co. v. Brown, 30 N. J. Eq. 201 ; Travis v. 
 Brown, 43 Pa. 9 ; Adams v. Field, 21 Vt. 264 ; Carter v. Jackson, 
 58 N. H. 157 ; Bell v. Brewster, 44 Ohio St. 696.
 
 202 b * AMERICAN NOTES. 
 
 Papers may be admitted in some States for the sole purpose of 
 comparison. State v. Ihompson, 80 Me. 194, 6 Am. St. Re]). 
 172, 13 .Xtl. S92 ; Com. V. Allen, 128 Mass. 46; caritra. People 
 V. Parker, 67 Mich. 222 ; State v. Thompson, 132 Mo. 301 ; 
 Stokes V. U. S., 157 U. S. 187. 
 
 Standard Admittedly Genuine. 
 
 Some States apparently allow writings not already before the 
 jury to be used as standards of comparison only if they are ad- 
 mitted to be genuine. Morrison v. Porter, 35 Minn. 425 ; Wilson 
 V. Beauchamp, 50 Miss. 32 ; Moore v. U. S., 91 U. S. 270 ; State 
 V. Clinton, 67 Mo. 385. (See Rev. Stat. 1899, § 4679.) 
 
 Letters admitted to be genuine may be given to the jury for 
 comparison, but such letters should be selected for that purpose 
 whose contents are not likely to influence the jury in any way. 
 Gambrill v. Schooley, 95 Md. 260. 
 
 Genuineness of the Standard of Comparison. 
 
 Before a specimen may be used for comparison, its genuine- 
 ness must be beyond doubt. " The whole doctrine of comparison 
 presupposes the existence of genuine standards. Comparison of 
 a disputed signature in issue with disputed specimens would not 
 be comparison in any proper sense. When the identity of any- 
 thing is fully and certainly established, you may compare other 
 things with it that are doubtful, to ascertain whether they belong 
 to the same class or not ; but when both are doubtful and uncer- 
 tain, comparison is not only useless as to any certain result, but 
 clearly dangerous, and more likely to bewilder than to instruct a 
 jury. If disputed signatures were admissible for the purpose of 
 comparison, a collateral inquiry would be raised as to each stand- 
 ard \ and the proof upon this inquiry would be comparison again, 
 which would only lead to an endless series of issues, each more 
 unsatisfactory than the first, and the case would thus be filled 
 with issues aside from the real question before the jury." Univ, 
 of Illinois V. Spalding, 71 N. H. 163. 
 
 Writing offered as a test for comparison must be proved con- 
 clusively to be genuine. Baker v. Haines, 6 Whart. 284 ; Depue 
 V. Place, 7 Pa. 428 ; Travis v. Brown, 43 Pa. 9.
 
 AMERICAN NOTES. 202 C * 
 
 Genuineness of Standard a F reliminary Question for the 
 Judge. 
 
 To avoid the introduction of collateral issues before the jury 
 and the consequent confusion of the main issue, the question of 
 the genuineness of the standard should not be submitted to the 
 jury at all. It should be treated as a preliminary question of ad- 
 missibility to be settled by the Court. In this case of University 
 of Illinois V. Spalding, 71 N. H. 163, the Court says : "The true 
 rule is that, when a writing in issue is claimed on the one hand 
 and denied on the other to be the writing of a particular person, 
 any other writing may be admitted in evidence for the mere pur- 
 pose of comparison with the writing in dispute, whether the latter 
 is susceptible of or supported by direct proof or not ; but, before 
 any such writing shall be admissible for such purpose, its genuine- 
 ness must be found as a preliminary fact by the presiding judge, 
 upon clear and undoubted evidence." 
 
 This rule is adopted by statute in some States and by the courts 
 in others. Colorado, St. 1893, p. 264 ; California, C. C. P. 1872, 
 § 1944; Florida, Rev. St. 1892, § 1121; Kentucky, Stats. 
 1899, § 1649; Missouri, Rev. St. 1899, § 4679; New York, 
 Laws 18S8, c. 555 ; Montana, C. C. P. 1895, § 3235 ; Wiscon- 
 sin, Stats. 1898, § 4189; Costello V. Crowell, 139 Mass. 590; 
 State V. Thompson, 80 Me. 194 ; Travis v. Brown, 43 Pa. 9 ; 
 Rowell V. Fuller, 59 Vt. 692. 
 
 Letterpress and Photographic Copies. 
 
 A letterpress copy of handwriting cannot be used for compari- 
 son. Cohen v. Teller, 93 Pa. 123. Nor may photographic 
 copies be so used. Vanderslice v. Snyder, 4 Pa. Dist. 424 ; 
 Ulmer v. Centner, 3 Penny (Pa.), 453. 
 
 Verification of Dates and Times. 
 
 Type, Paper, and Ink — To determine the genuineness or 
 (iate of a writing, consideration may be given to the ink, the 
 paper, and the type. McCorkle v. Binns, 5 Binney, 348 ; Dubois 
 V. Baker, 30 N. Y. 361. 
 
 Expert opinion is admissible as to the character of the ink, the 
 paper, or the type of a writing, to aid in determining its authen-
 
 202d* AMERICAN NOTES. 
 
 ticity. Owen 7'. Mining Co., 9 C. C. A. 338, 61 Fed. Rep. 6; 
 Johnson v. State. 2 Ind. 654 ; Jones v. Finch, 37 Miss. 4C8. 
 
 Difference in Ink. 
 
 To show that two documents were signed at different times, it 
 may be shown that they were written with different inks. Porell 
 7'. Cavanaugh, 69 N. H. 364. 
 
 Alterations and Erasures. 
 
 Expert testimony is very generally admitted to determine the 
 time of an erasure or an alteration, wliether it was before or after 
 the execution of the instrument, or whether there actually has 
 been any alteration at all. Ross v. Sebastian, 160 111. 604 ; Fee 
 V. Taylor, Zt^ Ky. 263 ; Dubois v. Baker, 30 N. Y. 361 ; Steven- 
 son V. Gunning, 64 Vt. 601 ; Ballentine v. White, 77 Pa. 26. 
 
 Fixing Time. 
 
 It is admissible to prove the time when a certain occurrence, 
 foreign to the case, took place, for the purpose of fixing by it the 
 time when a certain act, within the case, was done. Quintard v. 
 Corcoran, 50 Conn. 38. 
 
 A letter cannot be introduced to establish the time of its 
 receipt. Com. v. Burns, 7 Allen (Mass.), 540. 
 
 Conversation, in order to be admissible to fix a date, must have 
 reference to something which tends to establish it. Fisk v. Cole, 
 152 Mass. 335. 
 
 In order to show whether the defendant had shaved his mous- 
 tache before or after the time of a homicide, one witness was 
 allowed to say that it was not shaved on the day of a certain alter- 
 cation in a store, and the date of that altercation was proved by 
 another witness. Com. v. Chance, 174 Mass. 245, 75 Am. St. 
 Rep. 306. 
 
 Where the date of a receipt is in issue, the time the money was 
 actually received is relevant. Armstrong v. Burrows, 6 Watts. 
 (Pa.) 266. 
 
 To fix the time he met the defendants, witness may say that it 
 was the day before he heard of the safe-breaking. State v. Ells- 
 wroth, 130 N. C. 690. 
 
 To show that a burglary was done before sunrise, which oc-
 
 AMERICAN NOTES. 202 e * 
 
 curred at 7.04, it was proved that the owner knew of the burglary 
 between 7 and 7.30 a. m., and that the acts could not have 
 been done in so short a time. Taylor v. Terr. (Ariz.), 64 Pac. 
 
 423- 
 
 To show that two witnesses are testifying in regard to the same 
 
 place and time, they may give in evidence acts and statements 
 at that time to identify it. " Any circumstance or act occurring 
 at that transaction and remembered by both witnesses would 
 show that they were testifying to the same occasion and would be 
 clearly competent. So we are of opinion that the conversation of 
 the parties or any declarations made at the time are to be re- 
 garded as of the nature of verbal acts, and admissible for the 
 purpose of identifying the occasion of which the witnesses 
 speak. Statements used for this limited purpose are admitted 
 without regard to the truth of the facts stated." Earle v. Earle, 
 1 1 Allen I. 
 
 Evidence as to Handwriting. 
 
 A recent case in which the admissibility of evidence as to 
 handwriting is authoritatively discussed, both at common law and 
 under a modern statute, is People v. Molineux, 168 N. Y. 264, 318. 
 
 There the trial court admitted as standards of comparison 
 three classes of writings : First, fifty-six specimens conceded by 
 the defendant to be genuine ; second, seven specimens written 
 by the defendant at the request of an expert, after the defendant 
 was suspected but before his arrest, for the purpose of comparison 
 by that expert ; and, third, certain letters written, as claimed on 
 the part of the prosecution, by the defendant in the names of 
 H. C. Barnet and H. Cornish. 
 
 The purpose of the evidence was to show that the defendant 
 addressed a certain package, containing poison, to one Harry 
 Cornish, which poison was later taken by Mrs. Katharine J. 
 Adams with deadly effect. 
 
 The New York Statute provides that " Comparison of a dis- 
 puted writing, with any writing proved to the satisfaction of the 
 Court to be genuine, shall be permitted to be made by witnesses 
 in all trials and proceedings." 
 
 The defence contended that this statute permits comparison 
 only in case the " disputed writing " is itself in issue. But the 
 Court says (page 324) : " We think it too clear for extended argu-
 
 202 f* AMERICAN NOTES. 
 
 mcnt that the 'disputcil writing' referred to by the statutes is any 
 writing which one i)arty \\\iOX\ x trial seeks to prove as the genuine 
 liandwriting of any person, and which is not admitted to be such, 
 provided that the writing is not inadmissible under other rules of 
 evidence. ... If a disputed handwriting is itself either a fact in 
 issue or a fact relevant to the issue, it may be proved by the 
 means pointed out by the statutes." 
 
 The Court hold that all three standards were admissible, pro- 
 vided their genuineness was established by proper evidence. 
 The first class of writings was beyond question admissible. The 
 second class was also admissible. The Court says : " Writings 
 created post litem inotavi are inadmissible in favor of a party 
 creating them. But we have found no case holding that such 
 writings should be excluded when offered by the adverse party." 
 
 .'Vs to the letters written in the names of Barnet and Cornish, 
 which had been introduced in evidence for other purposes, but 
 were also used as a standard of comparison, it is held that they 
 were properly used as standards in case they were proved to the 
 satisfaction of the Court by evidence that was admissible under 
 the general rules of the common law for that purpose. In crim- 
 inal cases such genuineness must be established beyond a reason- 
 able doubt. Nor even then can such standards be used if they 
 are incompetent on some other ground, as it was here held the 
 Barnet letters were. 
 
 See note on this case after Chap. VII. " Poisoning Cases." 
 
 Belief of Witness as to Handwriting. 
 
 If a witness is competent to testify as to handwriting, his belief 
 is admissible, though it be not a positive one. The following is 
 taken from the trial of Richard P. Robinson, as reported in " Re- 
 markable Trials," page iSi : — 
 
 Joseph Hoxie, Sr., employer of the defendant, was examined by 
 Mr. Morris. 
 
 Q. Did you become acquainted with his handwriting from 
 seeing him write? 
 
 A. I have seen him write frequently. 
 
 Mr. Morris then handed to the witness a MS. book (being the 
 private diary of Robinson), and asked him if that was in the 
 handwriting of the prisoner. The witness replied I dare not
 
 AMERICAN NOTES. 202^* 
 
 swear it is j there is a considerable variety of hands in the book 
 itself. 
 
 Q. Can you see any part of the book where you can identify 
 the prisoner's handwriting? 
 
 A. Some parts of the book look something like the character 
 of his handwriting ; I have little opportunity of judging of any part 
 of his writing except from what I have seen in my books, and that 
 is a plain business-hand character — unlike what I see generally 
 in the book. On looking carefully over the book, I cannot see 
 any writing that I would venture to swear positively to be his. I 
 would not like to swear positively to the handwriting of any man 
 in the world, and if the Court please I will state my reasons. 
 
 Q. Is it because you would not like to swear to the hand- 
 writing of any man in the world that you do not choose to swear 
 to the handwriting in that book? 
 
 A. No, sir ; that is only one of my reasons ; there are some 
 parts of the book where there is writing that I believe to be the 
 prisoner's, but I shall hesitate to swear to it positively. 
 
 Q. Please, sir, point out such parts as you believe to be his. 
 
 A. If I say even that I believe the parts to be his, I should 
 qualify my assertion by stating that I was in doubt whether the 
 handwriting was his, or that of another person in my employ, 
 whose handwriting is very similar to what I see throughout the 
 book. 
 
 Q. What person do you mean, sir? 
 
 A. Mr. Francis P. Robinson. 
 
 Q. Is he in New York, sir? 
 
 A. He is not ; he is in Europe. 
 
 Q. When did he go to Europe? 
 
 A. On February 26 last. 
 
 Q. Look at the latter part of the book, sir, and at the dates, 
 and see, after the date of which you speak, whether you find any 
 handwriting that you believe to be the writing of the prisoner. 
 
 Mr. Maxwell objected to this course of the examination as 
 illegal, and as not being within the ordinary rule of evidence. 
 
 Mr. Phenix replied, and after a brief technical discussion Judge 
 Edwards decided that it was quite proper to ask of the witness his 
 belief as to the handwriting of the prisoner, and that his belief on 
 the subject was admissible testimony.
 
 202 // * AMERICAN NOTES. 
 
 The Trial of Richard P. Robinson. 
 
 On June 2, 1836, Richard P. Robinson was put on trial in New 
 York City for the murder of Dorcas Doyen, alias Helen Jewett. 
 It is a good illustration of successful defence against strong in- 
 criminating circumstantial evidence. 
 
 There was an unusual amount of interest taken in the case, not 
 only because of the atrocity of the murder, but because of the 
 romantic and abandoned character of the life of the beautiful 
 Helen Jewett. 
 
 The deceased, whose real name was Dorcas Doyen, was born 
 of respectable parents, but went wrong morally at the early age of 
 eleven. The lad with whom she consorted was, however, sent to 
 sea, and Dorcas reformed. She was adopted into a wealthy fom- 
 ily, was educated by them, and grew to be a beautiful and accom- 
 plished young lady. One day she was confronted by the sailor 
 with whom she had consorted in youth, and a new intimacy 
 sprang up. The affair was discovered, and the girl was cast out 
 and disowned by the family who had done so much for her. She 
 drifted from city to city, now being on the point of marrying a 
 wealthy man of good repute, who was warned by an anonymous 
 letter, and now being in want and distress. At last she became a 
 resident of a house of prostitution in New York. She had orig- 
 inally been decoyed into the business, under the pretence of giving 
 her work as a seamstress. 
 
 On April 10, 1836, the girl, then known as Helen Jewett, was 
 found murdered in her bed in the house of prostitution. 
 
 The defendant was a young man of good family, who was in 
 the employ of a prominent business house in the city. The young 
 man had been living a fast life, and was known at the house of 
 prostitution in question, and in the lower world of New York gen- 
 erally, as Frank Rivers. 
 
 He had met Helen Jewett, and the two had fallen violently in 
 love. After consorting together for some months, his love cooled. 
 Rumors of other sweethearts, and even of an approaching mar- 
 riage, reached Helen's ears ; she became very jealous, and even 
 threatened to expose the defendant to the world as the profligate 
 he really was. 
 
 All this was proved to show the motive that the defendant had 
 to commit such a crime.
 
 AMERICAN NOTES. 202 I * 
 
 The further evidence to show that the defendant was actually 
 the man who killed Helen Jewett was as follows : The keeper of 
 the house of prostitution, one Rosina Townsend, testified that she 
 saw the defendant, known to her as Frank Rivers, at her house on 
 the night in question ; that she herself admitted him and recog- 
 nized him, although he had drawn his cap over his face and had 
 drawn his cloak about his mouth and chin ; that she had later, 
 about IIP. M., taken a bottle of champagne to the room then 
 occupied by Helen Jewett and the defendant, and that she dis- 
 tinctly saw the defendant lying on the bed, noting particularly a 
 certain bald spot on the back of his head ; that before daylight 
 the next morning she was roused, and found Helen Jewett dead, 
 with her head split open and the bed-clothing all about her body 
 on fire. Two of the girls who were inmates of the house also 
 testified that the defendant, known to them as Frank Rivers, was 
 with Helen Jewett that night. The murderer, in escaping from 
 the house, had carried down Helen's lamp, and got out of the 
 back door, arousing no one. 
 
 One girl had heard the sound of a heavy blow, followed by a 
 moan, and left her room to investigate ; but there was no further 
 noise, and she desisted. 
 
 The officers, upon investigation, found a cloak in the back yard, 
 a cloak that was proved to have been worn on that and other 
 nights by the defendant. It was identified by the material, the 
 color, the style, and by a peculiarity of a cord with a silk tassel 
 that was attached to the cloak. When the defendant was ar- 
 rested, he was asked by the officers if he possessed such a cloak, 
 and he said not, and pointed to another as the only cloak he ever 
 wore. 
 
 In a near-by yard was found a hatchet marked with blood, un- 
 doubtedly the weapon with which the crime was committed. The 
 janitor of the store at which the defendant worked swore that he 
 had missed the hatchet belonging to that store a day or two before 
 the murder, and further swore that this was the hatchet formerly 
 at the store. 
 
 In their days of affection the defendant and Helen Jewett had 
 exchanged miniatures. The miniature of the defendant was 
 proved to have been in Helen's possession two days before the 
 murder, and the morning after the murder it was in the possession 
 of the defendant.
 
 202J 
 
 ♦ A.MKklCAX NOTKS. 
 
 The defence was conducted unusually well. The character of 
 the witnesses for the prosecution was bitterly attacked with telling 
 effect. Even the judge instructed the jury that the testimony of 
 prostitutes is very weak. I'iie evidence of the officers of the law 
 was weakened by showing that they were on friendly terms with 
 Rosina Townseml. Some inconsistent statements were proved. 
 
 Perhaps the most effective circumstance that was brought out 
 on the part of the defence was the fact that two of the frequenters 
 of this house of prostitution went by the name of Frank Rivers, 
 When Rosina Townsend admitted this on the stand, the large 
 court-room was filled with mingled cheers and hisses, indicating 
 the various sympathies of the vast crowd in attendance. Through- 
 out the entire trial, in fact, a seething mob assailed the doors, often 
 numbering thousands, and on one day the C^ourl was forced to ad- 
 journ, to obtain a great number of constables, and to threaten the 
 crowd with the militia. Only after clearing the room of specta- 
 tors could the trial at that time proceed. 
 
 The defence made a great effort to discredit Rosina Townsend's 
 testimony that she saw the defendant in Helen Jewett's bed on 
 the night of the murder. She had identified him positively by 
 the unusual bald spot. It was attempted to show that the bald 
 spot in question was not at that time visible, and that it did not 
 become visible until the defendant, while in prison, and upon his 
 physician's advice, had his head shaved because of falling hair. 
 The shaving of the head and the presence of the spot were com- 
 mented upon by the papers, and Rosina Townsend might have 
 read of it. On the other hand, however, the prosecution at- 
 tempted to show that she had mentioned the bald spot to several 
 persons before the defendant's head was shaved. 
 
 Evidence was introduced to show that there was little light at 
 the door when " Frank Rivers" was admitted that night, and that 
 therefore Rosina Townsend might have been mistaken in her 
 identification of the person admitted. Rosina Townsend and the 
 other inmates of the house had testified that "Frank Rivers" 
 arrived at the house at nine or nine thirty in the evening. The 
 defence gave evidence of a partial, but at the same time very suc- 
 cessful, alibi. A respectable grocer testified that on that evening 
 the defendant had bought half a dollar's worth of cigars at his 
 store and had remained there smoking until a quarter after ten. 
 This store was over a mile away from the scene of the murder.
 
 AMERICAN NOTES. 202 k * 
 
 The grocer was not well acquainted with the defendant, but he 
 had seen him a number of times, and he related definite circum- 
 stances indicating that he was not mistaken in this case, as that he 
 had compared watches with the defendant when the clocks were 
 striking ten, and he identified the defendant's watch. 
 
 The defendant's statement to the officers that he had no such 
 cloak as the one found in the yard was explained by the fact that 
 the cloak in question, which he actually had been wearing, did not 
 in fact belong to him, but to one Gray, who had given it to the 
 defendant as security for money loaned. 
 
 It appeared that the murderer, in escaping the back way, would 
 have been obliged to scale a whitewashed fence, and there was 
 evidence that when defendant was arrested his trousers were 
 marked with some white substance. Evidence on the part of the 
 defendant indicated that these white marks were paint marks 
 obtained in the newly painted basement of the store where he 
 worked. 
 
 A silk handkerchief bearing the name of another frequenter 
 of the house, known there as Bill Easy, was found under Helen 
 Jewett's pillow at the time of the finding of her body ; but the 
 prosecution introduced Bill Easy himself to explain how the hand- 
 kerchief came to be there. 
 
 The prosecution introduced a drug clerk, who swore that the 
 defendant, known to him then as Mr. Douglas, attempted a few 
 days prior to the murder to purchase arsenic to kill rats. He 
 identified the defendant with positiveness, but upon a vigorous 
 cross-examination was said to have become " completely con- 
 founded." 
 
 After a charge to the jury that was on the whole favorable to 
 the defendant, the Court commenting with severity upon the char- 
 acter of the State's witnesses, the jury returned a verdict of not 
 guilty, after an absence from the court-room of ten minutes. 
 
 Very naturally, Robinson left New York, and is said to have 
 married and become the father of a large family. 
 
 This case is fully reported in " Remarkable Trials," published 
 in 1863.
 
 CHAPTER V. 
 
 EXCULPATORY PRESUMPTIONS AND CIRCUMSTANTIAL 
 EVIDENCE. 
 
 The law of England recognizes several presump- 
 tions, /z^rw et de jure, which create entire or partial 
 exemption from criminal responsibility ; for instance, 
 that an infant under the age of seven years cannot 
 be guilty of crime, that an infant above that age and 
 under fourteen years shall be priin.i facie adjudged 
 doll incapax, and that, as to certain offences con- 
 nected with physical development, a mmor under 
 the age of fourteen years shall be conclusively pre- 
 sumed to be incapable of committing them, no evi- 
 dence being admissible to the contrary {a). Such 
 also is the presumption that offences committed by 
 the wife in the presence of her husband shall, with 
 certain exceptions, be considered to have been 
 committed by his coercion (^). But the presump- 
 tions which concern the subject of this essay are of a 
 different kind, consisting mainly of maxims drawn 
 from well-digested experience, grounded upon con- 
 siderations of natural equity, and framed for the 
 purpose of securing a candid construction of the 
 actions and motives of our fellow-men. They are 
 in truth but particular enunciations of strict justice. 
 An enumeration of some of the principal of these 
 presumptions will form the subject of this Chapter. 
 
 [a] I Hale's P. C. chs. 3 and 58 ; 4 BI. Comm. chs. 2 and 15, 
 \b) I Hale's P. C. c. 7 ; 4 Bl. Comm. c. 2.
 
 204 EXCULPATORY PRESUMPTIONS. 
 
 1. In tlie investigation and estimate of crimina- 
 tory ex'iclcncc tlicre is an antecedent prn/u'i fade 
 presumption in favour of the innocence of the party- 
 accused, grounded in reason and justice, and 
 recognized in judicial practice ; which presumption 
 must prevail until it be destro)ed by such a counter- 
 vailing amount of legal evidence of guilt as is 
 calculated to produce the opposite belief {c). It 
 must be admitted that in the aggregate, the number 
 of convictions vastly exceeds that of acquittals, and 
 that tlie probability is that, in a given numljer of 
 cases, far the greater number of the parties accused 
 are guilty ; but according to all judicial statistics, 
 and under every system, a considerable proportion 
 of the persons put upon trial are legally innocent. 
 In any particular case, therefore, the party may not 
 be guilty, and it is impossible, without a violation of 
 every principle of justice, to act upon the contrary 
 presumption of a superior probability of guilt. It 
 is therefore a settled and inviolable principle, that 
 till the contrary be proved, the accused shall be 
 considered as legally innocent, and that his case 
 shall receive the same dispassionate and impartial 
 consideration as if he were really so.^ 
 
 2. It would be foreign to the subject of this essay 
 to discuss the considerations which affect the 
 credibility of evidence in general, such as the 
 intregrity, disinterestedness and ability of the 
 witnesses, the consistency of their testimony, its 
 conformity with experience, and its agreement with 
 
 {c) See the language of Lord Gillies in Rex v. APKinley, 33 St. Tr. 
 275 at col. 506.
 
 EXCULPATORY PRESUMPTIONS. 205 
 
 collateral circumstances, — since these considerations 
 apply to circumstantial only in common with all 
 other testimonial evidence. It has been profoundly 
 observed, that of all the various sources of error, 
 one of the most copious and fatal is an unreflecting- 
 faith in human testimony (c/) ; and it is obvious that 
 all reasoning upon the relevancy and effect of 
 circumstantial evidence presupposes its absolute 
 verity, and that such evidence necessarily partakes 
 of the infirmities incidental to all human testi- 
 mony ; and experience has abundantly shown that 
 facts apparently of the most convincing character 
 have been fabricated and supported by false 
 testimony. Every consideration, therefore, which 
 detracts from the credibility of evidence in the 
 abstract, applies a fortiori to evidence which is 
 essentially indirect and inferential. In such cases, 
 falsehood in the minutest particular more or less 
 necessarily throws discredit upon every part of a 
 complainant's statement. Hence, since facts can 
 never be mutually inconsistent, or, as it has been 
 well expressed, " one truth cannot contradict 
 another " (<?), circumstantial evidence frequently 
 affords the means of evincing the falsehood of 
 direct and positive affirmative testim.ony, and even 
 of disproving the existence of the corpus delicti 
 itself, by manifesting the incompatibility of that 
 testimony with surrounding and concomitant circum- 
 stances, of the reality of which there is no doubt (/"). 
 Sir Matthew Hale mentions a very remarkable 
 
 {d) I Stewart's Collected Works, 247. 
 
 {e) Locke on the Hum. Underst. b. iv. c. 20, s. 8. 
 
 (/) Best on Presumptions (1844), p. 54.
 
 206 EXCULPATORY PRESUMPTIONS. 
 
 case, where an elderly man was charged with 
 violatin^^ a young girl of fourteen years of age, but 
 it was proved beyond all doubt, that a physical 
 infirmity rendered the perpetration of such a crime 
 utterly impossible (g). The prosecutrix of an 
 indictment ao-ainst a man for aclministerino- arsenic 
 to her, to procure abortion, deposed that he had sent 
 her a present of tarts of which she partook, and that 
 shortly afterwards she was seized with symptoms of 
 poisoning. Amongst other inconsistencies, she stated 
 that she had felt a coppery taste in the act of eating, 
 which it was proved that arsenic does not possess ; 
 and from the quantity of arsenic in the tarts which 
 remained untouched, she could not have taken above 
 two grains, while after repeated vomitings, the alleged 
 matter subsequently preserved contained nearly 
 fifteen grains, though the matter first vomited con- 
 tained only one grain. The prisoner was acquitted, 
 and the prosecutrix afterwards confessed that she had 
 preferred the charge from motives of jealousy (/i). 
 
 3. Irrespectively of and apart from any positive 
 discrepancy in the account given by a complainant, 
 there is a consistency of deportment and conduct 
 grounded upon the invariable laws of our moral 
 nature, which is essentially characteristic of truth and 
 honesty, and the absence of which necessarily detracts 
 from the credit of such evidence, and therefore tends 
 to create a counter-presumption. We reasonably 
 expect to discover in the demeanozcr of a person who 
 
 {g) I Hale P. C. c. 58. 
 
 {Ji) Rex V. Wha/ley, York Spring Assizes, 1821 ; Christison on 
 Poisons, 4th ed. p. 106.
 
 EXCULPATORY PRESUMPTIONS. 207 
 
 has just reason to complain of personal injury or 
 violated honour or right, prompt and unequivocal 
 indications of that sense of wrong and insecurity 
 which such acts of violence or wrong-doing are calcu- 
 lated instinctively to arouse in every human mind. 
 Sir Matthew Hale, in reference to one of the greatest 
 of human outrages, says, "If she {i.e. the woman 
 complaining) concealed the injury for any consider- 
 able time after she had opportunity to complain ; 
 if the place where the fact was supposed to be 
 committed were near to inhabitants, or common 
 recourse or passage of passengers, and she made 
 no outcry when the fact was supposed to be done, 
 when and where it is probable she might be heard 
 by others ; these and the like circumstances carry 
 a strong presumption that her testimony is false or 
 feigned " (z). These cautionary considerations are 
 as cogent and as much needed at the present day 
 as when they were written, and are applicable with 
 more or less force to accusations of every descrip- 
 tion ; but they are more especially weighty and 
 pertinent in reference to the particular crime referred 
 to, of which the learned author has said, that " it is 
 an accusation easily to be made, and hard to be 
 proved, and harder to be defended by the party 
 accused, though never so innocent" {k). Such cases, 
 he further observes, are not uncommon, and I.e has 
 related the particulars of two cases, where, though 
 the charges were groundless, the parties with diffi- 
 culty escaped. ** I only mention these instances," 
 said that upright judge, '* that we may be the more 
 cautious upon trials of offences of this nature, wherein 
 
 (/•) I Hale, p. C. ch. 58. {k) lb.
 
 208 EXCULPATORY PRESUMPTIONS. 
 
 the court ami jury may with so much case be imposed 
 upon ; without great care and vigilance, th(^ heinous- 
 ness of the offence many times transporting the judge 
 and jury with so much indignation, that they are 
 over-hastily carried to the conviction of the person 
 accused thereof, by the confident testimony some- 
 times of malicious and fdlse witnesses " (/). False 
 charges of this kind have unhappily been too com- 
 mon and too successful in all ages. The social 
 consequences of female dishonour are so deadly, and 
 the inducements to falsehood and revenge so pecu- 
 liar and so powerful, that there is no class of cases 
 in which it is more important to obtain an exact 
 knowledge of the motives and character of the 
 complainant. For these reasons great latitude of 
 cross-examination is permitted in cases of tliis kind, 
 and it is competent to the prisoner to give evidence 
 not only of the prosecutrix's general bad character, 
 but also of previous acts of immorality committed 
 with himself; with regard, however, to other par- 
 ticulars of alleged misconduct, such as alleged acts 
 of immorality with other men, the general rule 
 holds good that the prosecutrix's answers on cross- 
 examination cannot be contradicted (;;/). 
 
 4. Nor is the danger of false accusation confined 
 to the particular class of offences which has been 
 specially adverted to. Inducements to prefer false 
 
 (/) I Hale, p. C. ch. 58. 
 
 {in) Reg. V. Holmes, L. R. i C. C. R. 334 ; Reg. v. Riley, 18 O. B. D. 
 481. See Taylor's Law of Evidence, 9th ed. pp. 257, 950, 951 ; 
 Roscoe's Digest of Criminal Evidence, 12th ed. pp. 775-6: nnd 
 Archbold's Criminal Pleading, 22nd ed. p. 867, where the subject is 
 fully discussed and the cases collected.
 
 EXCULPATORY PRESUMPTIONS. 20g 
 
 charges may operate with greater or lesser force 
 with regard to accusations of every kind. Two 
 women were capitally convicted of robbing a young 
 girl named Canning, and afterwards confining her 
 under circumstances of great cruelty for twenty-nine 
 days without sustenance, except a quartern loaf and 
 a pitcher of water. Public odium was intensely 
 excited against the prisoners, and they very narrowly 
 escaped execution, and yet it was clearly ascertained 
 that the charge was a fabrication in order to conceal 
 the prosecutrix's misconduct during the period of 
 her absence from her master's house (//). Canning 
 was afterwards convicted of perjury, and sentenced 
 to be transported ; and upon her trial thirty-eight 
 witnesses, most of them unconnected with each other, 
 spoke to the identity of one of her unfortunate victims, 
 and proved a circumstantial alibi {d). Nine persons 
 were convicted on a charge of conspiring to carry 
 off from the house of her guardian, a young lady of 
 seventeen years of age, in order to procure her 
 clandestine marriage with a young man of low con- 
 dition for whom she had formed an attachment, and 
 with whom she had indulged in vulrar familiarities. 
 She gave her testimony in a manner apparently so 
 artless and ingenuous that she greatly prepossessed 
 the judge, and so favourably impressed the jury that 
 they stopped the prosecutor's counsel when about to 
 reply, and returned a verdict of gui.ty (/). Her story 
 
 {ti) Rex V. Squires and IVe/ls, 19 St. Tr. col. 261-275. 
 
 {0) Rex V. Canning, 19 St. Tr. 283 at col. 667 ; and see Lawrence's 
 Life of Fielding, 320. 
 
 {f) Rex V. Boiudifch and others, Dorchester Summer Assizes, 1818, 
 coram Park, J., Shorthand Rep. 
 
 C.E. P
 
 210 EXCULPATORY PRESUMPTIONS. 
 
 was nevertheless discovered to be a fabrication, for the 
 purpose of extricating herself from the shame of her 
 levity and misconduct, and she as well as a witness 
 who had corroborated her story were afterwards 
 convicted of perjury (<7). Miscreants, and among 
 them even the inferior ministers of the law, have 
 concocted and procured the commission of robbery 
 and other crimes for the purpose of obtaining 
 the pecuniary rewards formerly given by Act of 
 Parliament for the apprehension and conviction 
 of offenders (r). 
 
 It is frequently therefore of the highest import- 
 ance, to investigate the motives of the complainant, 
 and to ascertain whether they are such as may 
 have led to the institution of a false charge. The 
 just course of inquiry in such circumstances was 
 thus laid down by Mr. Justice Coltman. "The 
 jury," he said, " had nothing to do with the 
 prosecutor's motives except so far as, if it should 
 appear that there was any motive for the prosecu- 
 tion of an unworthy character made out, it would 
 then be their duty to watch such a case much more 
 narrowly than one in which no such motive appeared. 
 Even in that case, however, if the evidence satisfied 
 them of the truth of the charge, they had no right 
 to look at the motives that had induced the prose - 
 
 {q) Rex V. Whitby, and Rex v. Glen7i, K. B. Guildhall, October, 
 1820. 
 
 (r) Rex V, AP Daniel and others, Foster's Rep. 121 ; Rex v. Vangha7t 
 and others. Sessions Papers, 1816; Reg.v.Delahnnt, Dublin, 1842; 
 cited in Best's Principles of Evidence, 2nd ed. 1855, §451, p. 533, 
 note [z).
 
 EXCULPATORY PRESUMPTIONS. 211 
 
 cutor to prefer it, but were bound to say that the 
 accused person was guilty " [s). 
 
 5. A presumption of innocence may be created by 
 the language, conduct, and demeanour of the party 
 charged with crime : and it is upon this principle 
 that the ingenuous and satisfactory explanation of 
 circumstances of suspicion always operates in favour 
 of the accused. Mr. Justice Erie said he thought it 
 was extremely important, as much for the protection 
 of innocence as for the discovery of guilt, that the 
 accused should have an opportunity of making a 
 statement (/), and the Lord Justice Clerk, Lord 
 Mackenzie, in a Scotch case, said, that the declara- 
 tion of a prisoner, if fairly given, and founded in 
 truth, often had a very favourable effect (//). It is 
 evident, however, that this kind of presumption 
 must be attended with much uncertainty, and 
 in its application requires the exercise of great 
 
 {s) Reg. V. Coyie, C. C. C. October Session, 185 1. A curious 
 illustration of this remark occurred at Chester Autumn Assize*, 1886. 
 A man was tried for an offence under sect. 5 of the Cr minal Law 
 Amendment Act, 1885. The principal witness against him was the 
 mother of the girl, who had caught him in the act, but the transaction 
 had occurred more than a year before. The judge inquired why it was 
 that the charge was not made at the proper time. " I had pity upon 
 him," was the answer, "because he was an orphan." The orphan was 
 forty years of age, and as he had not ceased to be an orphan, further 
 inquiry was made, and it turned out that the prisoner had gone lately 
 to the mother's house and enjoyed her hospitality over a cup of tea. He 
 accidentally cracked a teapot, for which she wanted a shilling from 
 him, which he refused to pay, whereupon the charge was made. It was 
 perfectly true and the prisoner admitted it, but that cracked teapot and 
 his reluctance to pay a shilling cost him some months of imprisonment. 
 Reg. V. Joseph Roberts, 27 October, 1886, coram Wills, J. 
 
 (/) Reg. V. Baldry, 21 L. J. M. C. 130. 
 
 («) Rex V. Wishart, Syme's Justiciary Rep. App., at p. 22. 
 
 P 2
 
 212 EXCULPATORY PRESUMPTIONS. 
 
 circumspection. The deportment of innocence may 
 be siniiilated, and from the anomaHes of human 
 nature, it may be difficult if not impracticable in some 
 cases to determine what is the natural and suitable 
 conduct to be expected from a person inHuenced by 
 the pressure of an accumulation of circumstances, at 
 once threatening and fallacious. It is certain that 
 innocent persons have drawn upon themselves the 
 punishment of crime by conduct apparently consistent 
 only with guilt, but which has been resorted to 
 as likely to divert or repel unjust suspicion ; of 
 which an instructive case is mentioned by Lord 
 Coke(;r). " In the county of Warwick," says he, 
 " there were two brethren; the one having issue a 
 daughter, and being seized of lands in fee, devised 
 the o-overnment of his daugrhter and his lands until 
 she came to her age of sixteen years, to his brother, 
 and died. The uncle brought up his niece very 
 well both at her book and needle, etc., and she was 
 about eight or nine years of age ; her uncle for some 
 offence correcting her, she was heard to say, * Oh ! 
 eood uncle, kill me not ! ' After which time the 
 child, after much inquiry, could not be heard of, 
 whereupon the uncle, being suspected of the murder 
 of her, the rather for that he was her next heir, was 
 upon examination, anno 8 Jac. Regis, committed to the 
 gaol for suspicion of murder; and was admonished by 
 the justices of assize to find out the child, and there- 
 upon bailed him until the next assizes. Against which 
 time, for that he could not find her, and fearing what 
 would fall out against him, took another child as 
 like unto her both in person and years as he could 
 
 {x) Coke's 3rd Inst., c. 104, p. 232.
 
 EXCULPATORY PRESUMPTIONS. 2I3 
 
 find, and apparelled her like unto the true child, 
 and brought her to the next assizes ; but upon view 
 and examination she was found not to be the true 
 child ; and upon these presumptions he was indicted 
 and found guilty, had judgment, and was hanged. 
 But the truth of the case was, that the child, being 
 beaten ov^ernight, the next morning, when she should 
 go to school, ran away into the next county ; and 
 being well educated was received and entertained of 
 a stranger ; and when she was sixteen years old, at 
 which time she should come to her land, she came 
 to demand it, and was directly proved to be the 
 true child. Which case," the learned author adds, 
 " we have reported for a double caveat ; first to 
 judges, that they in case of life judge not too hastily 
 upon bare presumption, and secondly to the innocent 
 and true man, that he never seek to excuse himself 
 by false or undue means, lest thereby he, offending 
 God (the author of truth), overthrow himself as the 
 uncle did." From the foreofoinsf considerations it 
 follows that our judgments in regard to the conduct 
 of parties under accusation for crime must occasion- 
 ally be modified by allowances for human weakness 
 and inconsistency, which can in no degree be 
 admitted as qualifying the obligation of entire 
 truthfulness and consistency justly exacted from 
 those who voluntarily become the accusers of others. 
 
 6. Since an action without a motive would be an 
 effect without a cause, a presumption is consequently 
 created in favour of innocence from the absence of 
 all apparent inducement to the commission of the 
 imputed oftence. But the investigation of human
 
 214 EXCULPATORY PRESUMPTIONS. 
 
 motives is often a matter of great difficulty, from 
 their latency or remoteness ; and experience shows 
 that aggravated crimes are sometimes committed 
 from very slight causes, and occasionally even 
 without any apparent or discoverable motive. This 
 particular presumption would therefore seem to be 
 applicable only to cases where the guilt of the 
 individual is involved in doubt; and in such cases 
 juries are apt to attach considerable importance to 
 motive. Where a nurse was charged with the 
 murder of a woman by poison, it was shown that 
 the deceased and two other members of the family 
 had died of strychnine and morphia while under the 
 prisoner's care : that the prisoner had access to both 
 these poisons, and that the attacks and death 
 followed on the patient receiving food or medicine 
 from her. No motive could be suggested, and the 
 jury found that the prisoner had administered 
 morphia to the deceased, but with what intent there 
 was no evidence to show. She was acquitted ( y). 
 The question of intent is, however, seldom raised 
 in so direct a form, and it is still less often that 
 such a verdict is likely to be returned. It would 
 look as if the jury in the case mentioned had 
 confounded intention with motive. As a general 
 rule, if a person commits an act wrong in itself, and 
 of which the mischievous consequences are perfectly 
 well known, it is a safe conclusion and one generally 
 
 (y) Reg. V. Wilmot, Leeds Winter Assizes, 1881, coram Manisty, J. 
 See Times, Feb. loth and nth; cf. the charge of Abbott, J., in Rex 
 V. Dott?ian, Frazer's Shorthand Rep., p. 130, referred to at length, 
 pp. 331-336, i?if?-a. As to the distinction between motive and intention, 
 see p. 45, supra.
 
 EXCULPATORY PRESUMPTIONS. 215 
 
 adopted by reasonable people that he intended that 
 those consequences should follow. If so, it is 
 immaterial what the motive was, or whether there 
 was any motive at all. It is conceivable that a man 
 mic^ht kill another deliberately and intentionally 
 because he thought it better on the whole, either for 
 the victim himself or for society at large, that he 
 should die rather than live. Such a motive would 
 not save the slayer from conviction, nor would 
 necessarily the mere absence of an assignable motive. 
 
 7. An accused person's motives, even where 
 they are unquestionably of a criminal character, may 
 nevertheless be susceptible of different interpreta- 
 tions, and indicative of very different degrees of 
 moral and legal turpitude. Concealment of the death 
 of an illegitimate child and the clandestine disposal 
 of its body, for instance, may be accounted for either 
 by a purpose to suppress evidence of a murder, 
 or merely by the desire of preserving the reputa- 
 tion of female chastity. Where a woman was 
 indicted jointly with her husband for receiving stolen 
 property knowing it to have been stolen, and it 
 appeared that she had dealt with it and ultimately 
 destroyed it, it was held to be a question for the 
 jury whether she had so received and dealt with it 
 to aid him in turning it to profit, or merely to con- 
 ceal his guilt or screen him from the consequences (z). 
 So where a wife attempted to break up coining 
 implements at the time of her husband's apprehen- 
 sion, it was held that if done with the object of 
 screening him, it was no evidence of a guilty 
 
 (s) Reg. V. M'^Clarens, 3 Cox, C. C. 425 ; and Reg: v. Brook, 6 tb. 148.
 
 2l6 EXCULPATORY PRESUMPTIONS. 
 
 possession by her (a). And wlicre a man and lils 
 wife were found guilty of wounding a person with 
 intent to disfigure him and to do him grievous 
 bodily harm ; but the jury found that the wife 
 acted under the coercion of the husband and did 
 not personally inflict any violence on the prosecutor ; 
 it was held by the Court for the consideration of 
 Crown Cases Reserved that the conviction against 
 the wife could not be supported (/;). In all such 
 cases, every sound principle of interpretation and 
 judgment requires, that in the absence of contrary 
 proof, the act shall be referred to the operation of 
 the least guilty motive ; conformably to the maxim, 
 prcesumptio jiLclicatur potentior qiicc est ben^nior{c). 
 Of this evident principle of justice the statute 21 
 Jac. I. c. 27 (now happily expunged from our code), 
 which made the concealment of the death of an 
 illegitimate child by its mother, a conclusive pre- 
 sumption of murder, unless she could make proof 
 by one witness at least that the child was born dead, 
 was a flagrant violation. It is on this principle that, 
 when a special intent is made by statute an essential 
 ingredient of any offence, as in the cases of assault 
 with intent to murder or to rob, or to commit a 
 felony, or to prevent lawful apprehension or detainer, 
 such special intent must be proved by direct evidence 
 or by circumstances which necessarily or reasonably 
 lead to the inference of such intention. Thus a 
 charge of the statutable offence of throwing upon or 
 
 {a) Reg. V. Boober, 4 Cox, C C. 272. 
 
 {p) Reg. V. Sviith and wife., 27 L. J. M. C. 204. 
 
 {c) Menochius, De Prjesumplionibus, lib. v. pr. 29 — another way of 
 saying that guilt must be proved. Maxims, if unimpeachable, are 
 seldom much more than truisms.
 
 EXCULPATORY PRESUMPTIONS. 2I7 
 
 Otherwise applying to any person any corrosive fluid 
 or other destructive matter, with intent to burn, 
 maim, or do some bodily harm, is not sustained by 
 proof of throwing- a corrosive fluid for the purpose 
 of burning the clothes {d). And on the trial of a 
 man for throwing a stone at a railway carriage with 
 intent to endanger the safety of the passengers, where 
 it appeared that the prisoner threw a stone just as 
 the train was setting off, at a passenger against 
 whom he had been much excited, Mr, Justice Erie told 
 the jury that they must be satisfied that the intent 
 was to inflict some grievous bodily harm, and such 
 as would sustain an indictment for assaulting or 
 wounding a person with intent to do grievous bodily 
 harm , but that, as that is a question of degree, 
 which it is impossible to define further than In those 
 terms, the jury must decide upon the facts, whether 
 there had been such an intent {e). 
 
 8. Th^ prima facie "proisunx^iiow in favour of inno- 
 cence from the absence of all apparent motive, is 
 greatly strengthened where all inducement to the 
 commission of the imputed crime is opposed by 
 strong counteracting m.otives ; as where a party 
 indicted for arson with intent to defraud an insurance 
 office had furniture on the premises worth more than 
 the amount of his insurance (_/), or where a party 
 accused of murder had a direct interest in the con- 
 tinuance of the life of the party supposed to have been 
 
 [d) Reg. V. Coppard, Kingston Winter Assizes, 1855, co7-am 
 Crompton, J. ; and see Rix v. Woodburjje an I Coke, p. 54, supra, 
 
 (e) Reg. V. Rooke, i F. and F. 107. 
 
 (/) Rex \. Bingham, Horsham Spring Assizes, 181 1.
 
 2l8 EXCULPATORY PRESUMPTIONS. 
 
 murdered ("^ ). A forliori would this presumption 
 seem to appl)' wlicrc the hte of the suspecteel part\' lias 
 been endangered, as die consequence of the sui)[)Osed 
 criminal act; as where a party charged with murder 
 by poisoning had herself partaken of the poisoned 
 food (//) : but this circumstance, of apparently favour- 
 able presumption, may have been resorted to as an arti- 
 fice to avert suspicion, especially if the quantity taken 
 has not been sufficient seriously to endanger life (/'). 
 
 9. Since falsehood, concealment, flight, and other 
 like acts, are generally regarded as indications of 
 conscious guilt, it naturally follows that the absence 
 of these marks of mental emotion, and still more a 
 voluntary surrender to justice, when the party had 
 the opportunity of concealment or flight {k\ must be 
 considered as leading to the opposite presumption ; 
 and these considerations are frequently urged with 
 just effect, as indicative of innocence ; but the force 
 of the latter circumstance may be weakened by the 
 consideration that the party has been the object 
 of diligent pursuit (/), or that, as said by Lord 
 Cam[)bell, though he may have abstained from flight 
 from a sense of innocence, he may have done so 
 from thinking that, from the course he had taken, 
 nothing would be discovered against him (/;/). It 
 
 {g) Rex V. Poivning^ pp. 240-242, i/ifra. 
 
 [h) Res^.y. Haivkijts, Stafford Summer Assizes, 1839. 
 
 (/) Rex V. Wescoinbe, and Rex v. Nairn a/id Ogilby (19 St. Tr. 
 col. 1284), p. 122, supra : and see Rex v. Fe7t7iing, p. 295, injra. 
 
 [k) Menochius, De Praesumptionibus, lib. v. pr. 48. 
 
 (/) Rex V. Glen, Syme's Justiciary Report, at p. 277. 
 
 {ni) Reg. v. Palmer, Shorthand Report, at p. 310. See p. 344, infra. 
 It must also be borne in mind that at the present day, with extradition
 
 EXCULPATORY PRESUMPTIONS. 219 
 
 must be also remembered, that flight and other 
 similar indications of fear may be referable, not to 
 the precise offence charged but to other circum- 
 stances, as to disordered affairs (;/), or to guilt of 
 another and less penal character than that involved 
 in the particular charge (o). This view was urged, 
 but without success, in the case above mentioned of 
 the Goat Fell murder, where the prisoner's flight 
 and the concealment of the body were undoubtedly 
 grave inculpatory presumptions {J>). 
 
 10. As is the case with other presumptions, so 
 the inference of guilt from the recent possession of 
 stolen property may be rebutted by circumstances 
 which create a counter-presumption : as where the 
 property is found in the prisoner's possession under 
 circumstances which render it more probable that 
 some other person was the thief. Therefore, 
 where, on the trial of a mother and her two sons for 
 sheepstealing, it was proved that the carcass of a 
 sheep was found in the house of the mother, it was 
 considered that the presumption arising from the 
 possession of the stolen property immediately after 
 the theft was rebutted so far as respected her, by 
 the circumstance that ?7ia/e footsteps only were found 
 near the spot from which the sheep had been 
 
 treaties covering almost the whole of the civilized world, permanent 
 escape is extremely difficult. 
 
 («) J^ex V. Crossfield, 26 St. T. at col. 217. 
 
 (<?) Rex V. Schojield, 31 St. Tr. at col. 1061 ; and see the language 
 of Tindal, L. C. J., in Rex v. Frost, Gurney's Rep. 766 ; and of the 
 Lord Justice Clerk Boyle, in Rex v. Hunter and others^ Court of 
 Justiciary, Jan. 1838, Shorthand Report, 368. 
 
 {J)) R. V. Laurie, supra, p. 119.
 
 220 EXCULPATORY PRESUMPTIONS. 
 
 Stolen [C]). A woman was tried for the larceny 
 of five saws which had been stolen from the 
 workshop of a hat-block turner during the night. 
 There was a hole in the building large enough for a 
 person to have crept through it. On the following day 
 she pledged two of the saws with a pawnbroker in 
 the neighbourhood. On the following night, the 
 house of the prosecutor was broken open and a 
 number of articles stolen. No communication existed 
 between the house and the workshop. Two days 
 afterwards the prisoner was taken into custody in 
 the house of a man who was himself charged with 
 having committed the burglary. Mr. Baron Gurney 
 said it was improbable that the female should have 
 taken these saws (r), but that it was extremely 
 probable that she should have been employed by 
 another person to pawn them, that it was hardly a 
 case in which the general rule could apply, and that 
 it would be safer to acquit the prisoner (s). Circum- 
 stances of conduct also may repel this prima facie 
 presumption ; as where the prisoner a few days 
 after the robbery of a large quantity of plate in 
 London, sold, to a dealer in gold and silver, some 
 silver articles marked with the prosecutor's crest 
 partially obliterated, which had formed part of the 
 stolen property. Mr. Baron Bramwell said it was a 
 circumstance in the prisoner's favour that he had 
 disposed of the silver at a place where he had been 
 
 {q)Rex\, Arundel aftd others, i Lewin, C. C. 115. 
 
 (r) Women commit burglary and housebreaking but seldom, though 
 cases of both offences committed by women are probably within the 
 experience of every judge who has been for some years on the 
 bench. 
 
 {s) Rex V. Collier f 4 Jurist, 703.
 
 EXCULPATORY PRESUMPTIONS. 221 
 
 known for several years and had been in the habit 
 of bringing gold and silver for sale, and did not 
 appear to have made any attempt at secrecy. The 
 prisoner was acquitted [t). 
 
 T T. Circumstances of apparently the most unfavour- 
 able presumption may be susceptible of an explana- 
 tion consistent with the prisoner's innocence, and 
 really be irrelevant to the particular inference sought 
 to be derived from them {71) ; or they may be 
 opposed by circumstances which weaken or neutralize, 
 or even repel, the imputed presumption, and induce a 
 stronger counter-presumption (?/). In all such cases, 
 justice demands that dispassionate and candid con- 
 sideration be given to the alleged circumstances of 
 explanation or rebuttal. On the trial of a shoe- 
 maker for the murder of an aged female, it appeared 
 that his leathern apron had several circular marks 
 made by paring away superficial pieces, which it 
 was supposed had been removed as containing spots 
 of blood, but it was satisfactorily proved that the 
 prisoner had cut them ofif for plasters for a neigh- 
 bour [x). A policeman on his examination before 
 the Coroner, where the question was, whether a 
 young woman had been murdered or had committed 
 suicide, swore that a piece of rope found in the 
 prisoner's box appeared to have been cut from the 
 same piece that was round the neck of the deceased ; 
 but on the trial he acknowledged that he had been 
 
 (/) jRe^g-. V. Benjamz'n, C. C. C, June, .'858. 
 
 (u) Rex V. Thornton^ pp. 244-249, infra ; Rex v. Looker, pp. 242-244, 
 infra; Reg. v. Pook, pp. 250-252, infra; Reg. v. Franz, pp. 252-255^ 
 infra. 
 
 ( v) Rev V. Fitter, Warwick Summer Assize, 1834, coram Taunton, J,
 
 222 EXCULPATORY PRESUMPTIONS. 
 
 mistaken ; the two pieces of rope had in the interim 
 been examined by a rope-maker, and were found 
 not to correspond, one piece being twisted to the 
 right and the other to the left(jj/). The prisoner was 
 convicted upon the general evidence, and executed. 
 Two men were tried for killing a sheep with intent 
 to steal the carcass. The prosecutor had three 
 sheep on a common, on the 14th of December, on 
 which evening the prisoners, one of whom had a 
 gun, were seen near the common driving several 
 sheep before them. One of the witnesses, when 
 near the prosecutor's house, heard the report of a 
 oun in the direction of the common, and, havino;- a 
 suspicion of the object of the prisoners, went to the 
 prosecutor's house and communicated his suspicion, 
 in consequence of which the prosecutor and the 
 witness went to the common on which the sheep 
 had been left feeding, and discovered that one of 
 them was not there. The prisoners were appre- 
 hended the same night at their respective homes. 
 In the lodgings of one of the prisoners a gun was 
 found which had been recently fired, and some shot 
 and powder wrapped in a piece of newspaper, from 
 which two small pieces had been torn ; and upon the 
 person of the other prisoner, a knife was found dis- 
 coloured with blood. No traces were found of the 
 lost sheep at that time, but the next day the carcass 
 was found, concealed by fern, on the common ; the 
 sheep had been shot and also stuck in the neck. 
 Two days afterwards, on searching near the spot 
 where the carcass was found, two small pieces of 
 
 il) R'^K- ^'- Drory, coram Lord Campbell, L. C. J., Chelmsford Spring 
 Assizes, 185 1.
 
 EXCULPATORY PRESUMPTIONS. 223 
 
 newspaper were discovered, singed and bearing 
 marks of having been fired from a gun, wliich on 
 comparison were found to be the identical pieces so 
 torn from the paper in question. Notwithstanding 
 these apparently conclusive circumstances, the jury 
 acquitted the prisoners, as it appeared from the 
 cross-examination of one of the witnesses that he 
 had seen them shooting on the common on the 
 previous Sunday (z). A man was tried for murder 
 on Horwich Moor, under circumstances which were 
 extremely suspicious ; but the presumption against 
 him was greatly weakened, if not entirely destroyed, 
 by the circumstance that six shots extracted from 
 the deceased's brain all corresponded in weight 
 with the shot known as No. 3, while the shot in the 
 prisoner's bag contained a mixture of Nos. 2 and 3, 
 and the charge in his gun was found to contain the 
 same mixture ((T?). The value of such exculpatory facts 
 will perhaps be well illustrated by a case of an opposite 
 kind. A gamekeeper had been murdered on Margam 
 Moor, near Swansea. A formidable piece of evi- 
 dence against the prisoner (who was convicted and 
 executed) was that two or three hundred yards from 
 the body of the deceased was found a gun, a powder- 
 flask, and a pouch, carefully hidden in a ditch by 
 the side of a wall. There could be no doubt that 
 all three were hidden at the same time and by 
 the same person. The gun was conclusively shown 
 to have been taken by the prisoner from the 
 
 (z) Reg. V. Courtnage and Mossingham, Winchester Spring 
 Assizes, 1843, coram Atcherley, Serjt. 
 
 {a) Reg. V. Whittall, Liverpool Spring Assizes, 1839, coram Alder- 
 son, B.
 
 224 KXCULPATORY PRESUMPTIONS. 
 
 house in which he was lodging some two or three 
 hours before the murder was committed ; this inter- 
 val affording ample time for him to have reached 
 the scene of the murder. In close proximity to the 
 body were found 23 shots — one, No. 6, by itself, the 
 other 22 in a pool of blood close to the body, 
 ranging from BB. to No. 7. The pouch contained 
 a quantity of shot ranging from BB. to No. 8. It 
 was shown that such a mixture of shot is extremely 
 rare ; poachers frequently using mixed shot, but 
 very seldom of more than two or three sizes {b). 
 
 A druggist's apprentice was tried for the murder 
 by prussic acid of a female servant who was 
 pregnant by him, and the case was one of much sus- 
 picion ; but there was a strong counter-presumption 
 from the fact that the deceased had made preparations 
 for a miscarriage on the very night in question [c). 
 
 A man was tried for the murder of a girl in Poole 
 Harbour ; the evidence raised a very strong pre- 
 sumption that he had wilfully pushed her over the 
 quay side into the water after a quarrel, but its effect 
 'was greatly weakened by the fact that the w^oman's 
 shawl, hat, and brooch were found laid carefully 
 upon a post, which was more consistent with suicide 
 than murder, and the prisoner was acquitted {d). In 
 a case referred to hereafter, evidence of identity of 
 
 {b) Reg. V. Joseph Lewis, Swansea Sum. Ass., 1898, coram Wills, J. 
 
 {c) Reg. V. Freeman, Leicester Spring Assizes, 1839, coram Best, 
 L. C. J. ; and see Rex v. Barnard, 19 St. Tr. 815. 
 
 {d) Reg. V. Trainy, Dorchester Assizes, 1868, coram Mellor, J. See 
 Times., July 23rd, 1868.
 
 EXCULPATORY PRESUMPTIONS. 225 
 
 a foreigner as the murderer of an old woman at 
 Kingswood, of a singularly cogent character, was 
 satisfactorily explained away by the fact that another 
 foreigner had stolen his bag with his clothes and 
 papers, and by other exceptional coincidences {e). 
 
 12. Nor must it be overlooked, as one of the 
 sources of error and fallacy in these cases, that 
 circumstances of adverse presumption, apparently 
 the most conclusive, have been fabricated by the 
 real offender, in order to preclude suspicion from 
 attaching to himself, and to cause it to rest upon 
 another; as where a party was convicted upon an 
 indictment for privily conveying three ducats into 
 the prosecutor's pockets, with intent to charge him 
 with having robbed him of the same {/) ; or where 
 an offender surreptitiously put on the shoes of 
 
 (if) R. V. Franz, pp. 252-255, injra. 
 
 (/) Rex V. Sitno?i, 19 St. Tr. 680. The last edition of the present work 
 states that upon a new trial the defendant was acquitted. The report 
 in the State Trials show that a new trial was had. The case was tried 
 at the Assizes for Essex before a special jury. It must therefore have 
 been removed by certiorari into the King's Bench. The charge was 
 that of a misdemeanour, so that a new trial was a possibility. The 
 report, however, stops with the statement that the new trial took place 
 on the 1 2th July, 1752, without mentioning the result. The Editor 
 has been unable to verify the fact of acquittal. It may, however, have 
 been taken from a publication called "Ashley's Case and Appeal." 
 Ashley was the prosecutor on the first trial. His attorney had com- 
 mitted some serious irregularities in getting the original warrant 
 backed, and the arrest under it was illegal. Simon brought an action 
 against Ashley and the officers who made the arrest. The action was 
 tried at the Guildhall on the 9th July, 1752 — just three days before the 
 second criminal trial was had — and resulted in a verdict for Simon for 
 ;^2oo. A note at col. 692 of 19 St. Tr. quotes from "Ashley's Case 
 and Appeal," but the Editor has not been able to find the publication. 
 The result of the second trial of Simon is probably to be found in it. 
 
 C.E. Q
 
 226 EXCULPATORY PRESUMPTIONS. 
 
 another person while engag-ed in the commission ot 
 crime, in order that the impressions might lead to 
 the inference that the crime was committed by the 
 owner of the shoes (^). 
 
 13. In f )rming a judgment as to a prisoner's interi- 
 tion, evidence that the party has previously borne a 
 good character is often highly important, and if the 
 case hangs in even balance, should make it pre- 
 ponderate in his favour (/^). But if the evidence of 
 guilt be complete and convincing, testimony of 
 previous good character cannot and ought not to 
 avail (z). The reasonable operation of such evidence 
 is to create a presumption that the pnrty was not 
 likely to have committed the act imputed to him ; 
 which presumption, however weighty in a doubtful 
 case, cannot but be unavailing against evidence 
 u'hich satisfactorily establishes the fact. 
 
 Evidence of character must of course be applicable 
 to the particular nature of the charge ; to prove, for 
 instance, that a party has borne a good character for 
 humanity and kindness, can have no bearing in 
 reference to a charge of dishonesty. The correct 
 mode of inquiry is as to the general character of 
 the accused. Witnesses as to character must not 
 give evidence of particular facts, or of their own 
 
 (^) See the case of Fra?iqois Mayenc^ siipra^ p. 178 ; and see other 
 such cases in Wharton's Criminal Law of the United States, Ch. IL, 
 sec. 7. 
 
 {Ji) Per Lord Ellenborough, L. C. J., in Rex v. Dav:soft, 31 St. Tr. 
 217; and see the language of Tindal, L. C. J., in Reg. v. Frosty 
 Gurney's Rep. 749. 
 
 (/) Ibid.^ and Rex v. Haigh, 31 St. Tr. 1122.
 
 EXCULPATORY PRESUMPTIONS. 227 
 
 opinions, but only as to the general reputation which 
 the accused bears (/,'). The prosecutor is not 
 allowed to adduce evidence of a prisoner's bad 
 character in order to prove that he committed, or 
 was likely to commit, the offence charged. It has 
 been said that such evidence is irrelevant and 
 calculated to lead the mind to a collateral issue (/). 
 But the truth is that this part of our law is an 
 anomaly. Logically speaking, an antecedent bad 
 character would form quite as reasonable a ground for 
 the presumption of guilt as previous good character 
 for the presumption of innocence. The practice of 
 refusing to admit evidence on the part of the 
 prosecution of a prisoner's bad character, and of 
 allowing evidence of good character to be given, 
 grew up from a desire to administer the law with 
 mercy at a time when it was felt to be too severe (w). 
 Indeed these rules are the result of policy and 
 humanity rather than of any scientific considera- 
 tions as to the strict relevancy of the evidence 
 in question (72). In the text-books of the Civil 
 Law, much stress is laid upon }nala fania, and in 
 Scotland habit and repute is an admitted aggravation 
 
 {k) Reg. V. Row'on, 10 Cox, C. C. 25 ; 34 L. J. M. C. 57. But in 
 Rex V. Davison, 31 St. Tr., col. 211, Lord Ellenborough, L. C. J., 
 admitted evidence of individual opinion as to prisoner's character and 
 only stopped the statement as to panicular facts. 
 
 (/) Evidence of an admission by the accused that he was addicted 
 to the commission of the particular offence charged was rejected as 
 irrevelanl in Rex v. Cole, Best on Presumptions, p. 212. 
 
 {m) The frequency of capital punishmeat in old times has to 
 answer for many anomalies and not a few mischievous subtleties 
 and refinements in English criminal law. 
 
 [n) See per Cockburn, L. C. J., and Willes, J., in Reg. v. Rowtofi, 
 note {k), supra. 
 
 q 2
 
 228 EXCULPATORY PRESUMPTIONS. 
 
 in char.L;cs of theft {o), but there are not wantin^,^ 
 exemphfications of the danger of permitting the 
 inllucnce of such evidence. 
 
 If, however, the presumption arising from the 
 evidence of previous good character be set up by 
 the prisoner, it is then competent to neutraHze its 
 effect by the cross-examination of his witnesses, 
 either as to particular facts (/), or as to the grounds 
 of their beHef {q) for the purpose of discrediting 
 their testimony ; it is even competent to repel such 
 evidence by calling witnesses to give evidence of the 
 prisoners general bad character, though such a 
 course would be somewhat unusual (r). Thus where 
 a prisoner was indicted for a highway robbery, and 
 called a witness who deposed to having known him 
 for years, during which time he had borne a good 
 character, it was permitted to ask the witness on 
 cross-examination whether he had not heard that 
 the prisoner was suspected of having committed a 
 robbery which had taken place in the neighbourhood 
 some years before; Mr. Baron Parke said, that 
 " the question is not whether the prisoner was 
 guilty of that robbery, but whether he was S7is- 
 pected of having been implicated in it. A man's 
 character," added the learned judge, "is made up 
 of a number of small circumstances, of which his 
 being suspected of misconduct is one" (i"); but 
 
 [p) I Dickson's Law of Evidence in Scotland, vol. i., § 30, pp. 23, 23. 
 \p) Reg. V. Hodgkms, 7 C. & F. 298. 
 (^) Taylor's Law of Evidence, 9th ed., 1895, p. 250. 
 (r) Reg. V. Row f on, 10 Cox, C. C. 25 ; 34 L. J. M. C. 57 (overruling 
 Ref;. V. Bur/, 5 Cox, C. C. 284). 
 
 {s) Rex V. Woody 5 Jurist, 225 ; and Best on Pros. p. 215.
 
 EXCULPATORY PRESUMPTIONS. 229 
 
 Mr. Justice Erie refused to permit the cross-exami- 
 nation of a witness to character as to circumstances 
 of suspicion against the prisoner which occurred 
 upon the same day as the alleged offence was 
 committed (/). 
 
 As a general rule, neither the prosecutor nor the 
 prisoner can enter into evidence as to particular 
 facts of good or bad conduct : but an exception to 
 ^the rule was created by statute 6 & 7 William IV. 
 c. Ill, which enacts that, if upon the trial of any 
 person for any subsequent felony, such person shall 
 ^\N^ evidence of his good character, it shall be 
 lawful for the prosecutor in answer thereto, to give 
 evidence of the conviction of such prisoner for the 
 previous felony ; and that the jury shall inquire of 
 the previous conviction and subsequent offence at 
 the same time; and this provision has been extended 
 by Sr. 14 & 15 Vict. c. 19, s. 9 (?/), to many mis- 
 demeanours. The statutes equally apply where the 
 evidence of good character is obtained by the 
 prisoner's counsel on the cross-examination of the 
 witnesses for the prosecution {x\ These rules have 
 been carefully preserved by the Criminal Evidence 
 Act, 1898 {y), which, while introducing the great 
 modern change of allowing every accused person to 
 give evidence on his own behalf, provides that a person 
 charged and called as a witness shall not be asked, 
 and if asked shall not be required to answer, any 
 
 (/) Reg. V. Rogan and Elliott, i Cox, C. C. 291. 
 («) See now the Larceny Act, 1861 (24 & 25 Vict. c. 96, s. 116), 
 and 24 & 25 Vict. c. 99, s. y], as to coinage offences. 
 (x) Reg. V. Shrimpton, 3 C. & K. y]^ 
 \y) 61' & 62 Vict. c. 36, s. I (/),
 
 230 EXCULPATORY PRESUMPTIONS. 
 
 question tending to show that he has committed or 
 been convicted of or been charged with any offence 
 other than that wherewith he is tlien charged, or is 
 of bad character, unless- (i.) the proof that he has 
 committed or been convicted of such other offence is 
 admissible evidence to show that he is guilty of the 
 offence wherewith he is then charged ; or(ii.) he has 
 personally or by his advocate asked questions of the 
 witnesses for the prosecution with a view to establish 
 his own good character, or the nature or conduct of 
 the defence is such as to involve imputations on 
 the ch::racter of the prosecutor, or the witnesses 
 for the prosecution ; or (iii.) he has given evidence 
 against any other person charged with the same 
 offence. 
 
 14. Of all kinds of exculpatory defence, that of an 
 alibi, if clearly established by unsuspected testimony, 
 is the most satisfactory and conclusive. While the 
 foreeoinof considerations are more or less of an 
 argumentative and inconclusive character, this 
 defence, if the element of time be definitely and 
 conclusively fixed, and the accused be shown to have 
 been at some other place at the time, is absolutely 
 incompatible with, and exclusive of, the possibility 
 of the truth of the charge. " It must be admitted," 
 says Sir Michael Focter, "that mere alibi evidence 
 lieth under a great and general prejudice, and ought 
 to be heard with uncommon caution ; but if it 
 appeareth to be founded in truth, it is the best 
 negative evidence that can be offered : it is really 
 positive evidence, which in the nature of things 
 necessarily implieth a negative ; and in many cases
 
 EXCULPATORY PRESUMPTIONS. 23 1 
 
 it is the only evidence an innocent man can 
 offer" (2). 
 
 It is obviously essential to the proof of an alibi 
 that it should cover and account for the whole of the 
 time of the transaction in question, or at least for so 
 much of it as to render it impossible that the prisoner 
 could have committed the imputed act ; it is not 
 enough that it renders his guilt improbable merely, 
 and if the time is not exactly fixed, and the place at 
 which the accused is alleged by the defence to have 
 been is not far off, the question then becomes one of 
 opposing probabihties. A defence of an alibi was 
 therefore disregarded, because all that the prisoners 
 offered to prove was that they were in bed on the 
 night in question at twelve o'clock, and were found in 
 bed next morning, after the arson v/ith which they 
 were charged had taken place, the distance being two 
 miles, so that they might have risen, committed the 
 deed, and returned to bed(^). On the trial of a 
 man for the murder of a young woman under 
 circumstances of the strongest adverse presumption, 
 the proof was that the deceased had been murdered 
 at her father's cottage in the forenoon of the day in 
 question, and the prisoner alleged that he was at 
 work the whole of that day with his fellow- labourers 
 at a distance from the cottage : but it turned out 
 that he had been absent from his work about half- 
 an-hour, an interval sufficiently long to have enabled 
 
 {z) Foster's Discourses on the Crown Law, p. 368 ; and see the 
 observations of George, B., in Rex v. Brennaii, 30 St. Tr. col. 79. 
 
 [a) Rex V. Frazer, Alison's Principles of the Criminal Law of 
 Scotland, vol. ii., p. 625.
 
 232 EXCULPATORY PRESUMPTIONS. 
 
 him to reach the cottage, commit the murder, and 
 rejoin his fellow- workmen. He was convicted, and 
 before his execution confessed his g^uilt [d] 
 
 The credibility of an aiibi is greatly strengthened 
 if it be set up at the moment when the accusation is 
 first made, and be consistently maintained through- 
 out the subsequent proceedings. These conditions 
 were remarkably fulfilled in the memorable case of 
 Abraham Thornton, of which a full account will be 
 given hereafter. To all appearance the guilt of the 
 prisoner was the necessary conclusion from the 
 supposed inculpatory facts, and yet he had been seen 
 by a number of independent and unimpeachable 
 witnesses at such a distance from the scene of the 
 alleged murder, at the very time when it must have 
 been committed, if at all, as to render it physically 
 impossible that the deceased could have been 
 murdered by him; and all the facts supposed to 
 have been the conclusive indications of guilt were 
 satisfactorily explained by collateral circumstances, 
 and by a different hypothesis [c). 
 
 On the other hand, it is a material circumstance 
 to lessen the weight of this defence, if it be not 
 resorted to until some time after the charge has 
 been made [d), or if nothing happened immediately 
 
 {b) Rex V. Ric/iardsott, pp. 384-389, mfra, and R. v. Midler^ C. C. C. 
 Oct. 27, 1864. 
 
 {c) Rex\. Thornton, pp. 244-249, ittfra; and see Rex v. Canning, 
 19 St. Tr. 283, where the prosecutrix of a capital charge was convicted 
 of perjury on the evidence of thirty-eight witnesses who proved an 
 alibi (see p. 209, supra). 
 
 (</) See pp. 85-87, supra.
 
 EXCULPATORY PRESUMPTIONS. 233 
 
 after the transaction to lead the witnesses to watch 
 so as to be accurate with respect to the hour or 
 time to which they speak, even supposing them 
 to depose under no improper bias or influence {e); 
 or if having been once resorted to, a different 
 and inconsistent defence is afterwards set up. 
 There are many other sources of fallacy con- 
 nected with this particular defence ; such as mistake 
 as to the person from want of opportunity of 
 accurate observation, — or other causes of miscon- 
 ception, — the possible difference of clocks {/), or 
 the fraudulent alteration of them to tally with other 
 facts ; as where one of the perpetrators of a murder 
 hastened home, put back the clock two hours, and 
 went to bed ; and shortly afterwards awoke his 
 servant, and told her to go down-stairs and see what 
 was the time, which she did, not knowing that the 
 clock had been tampered with ; so that her testimony 
 led to his acquittal (^). 
 
 A group of irrelevant facts is sometimes artfully 
 arranged so as to give an appearance of reality and 
 coherence to the defence, the facts being true in 
 themselves, but fraudulently referred to the critical 
 day or time, instead of to the real time of their 
 occurrence (/i) ; or such a misstatement may take 
 
 (e) Per Le Blanc, J., in Rex v. Mellor and others^ 31 St. Tr. 1032 ; 
 and see Rex v. Haigh, ib. t 1 18 ; and the observations of Shaw, C. J., 
 in Professor Webster's case, Bemis's Rep., at p. 478 ; see p. 109, 
 supra. 
 
 (/) Rex V. Schofield, 31 St. Tr. 1063 ; Rex v. Mellor, ib. 1027., 
 
 {g) Rex V. Hardy ; see Times of the 28th November, 1857, where it 
 is stated that one of the murderers made a circumstantial confession 
 on his death-bed. 
 
 {Jt) See a case of this kind in 8 Lond. Med. Gaz. 36.
 
 234 EXCULPATORY PRESUMPTIONS. 
 
 place by unintentional mistake (z). In an American 
 case, where several persons were tried for an 
 atrocious murder, it appears to have been a part 
 of the plot for each of the prisoners to sleep on the 
 night of the murder with some one who could testify 
 to an alibi. One of the murderers had requested a 
 man to sleep in his house ; but the witness stated 
 that he mi<^ht have been absent while he was asleep. 
 Another of them went several miles from the place 
 of the murder to sleep, and the person in whose 
 house he stayed had no doubt that he was within- 
 doors the whole night. Two others of them went to 
 a tavern several miles from the scene of the murder, 
 and went to bed together ; but in the night one of 
 them was discovered leaving the house, although he 
 evidently wished to be unnoticed ; and he was absent 
 so long, not returning until the morning, as to alarm 
 the tavern-keeper, who with his wife made diligent 
 search for him in the neighbourhood, but his bed- 
 fellow manifested no anxiety or alarm, and got up 
 and assisted in the search {k\ 
 
 This defence is especially easy of fabrication or 
 mistake in regard to the essential element of time, 
 where a few minutes may be of vital moment ; and 
 the unblushing effrontery with which witnesses 
 sometimes present themselves to speak to time, 
 without regard to plausibility or consistency, is truly- 
 surprising. On a trial for murder, two witnesses 
 who were called to support a defence of an alibi 
 swore that they were able to speak positively to the 
 
 (?) Rex V. Baines, 31 St. Tr. 1091 ; Rex v. Haigh, ib. 11 18. 
 {^k) Case ol Bauer and others^ 2 Chandler. Anier. Cr. Tr. 3.56.
 
 EXCULPATORY PRESUMPTIONS. 235 
 
 time, from having looked at a clock ; but upon being 
 required by the counsel for the prosecution to tell 
 the time by the clock in court, after some hesitation 
 admitted that they were unable to do so (/). In 
 another case it was elicited in cross-examination of 
 a woman with whom the prisoner lived, that on his 
 return home after an absence of an hour, during 
 which he committed two murders, he told her to say 
 that he had not been out more than ten minutes (;;2). 
 
 Wherever pertinent and material evidence by 
 which an alibi might, if true, have been supported, 
 is withheld (??), or the defence fails of being supported 
 by credible and sufficient evidence, or is detected to 
 be the result of afterthought or contrivance, or is con- 
 tradicted, or otherwise rebutted, the attempt to set it 
 up recoils with fatal effect upon the party who asserts 
 it ; and often, in the language of a learned judge on 
 the Irish bench, "amounts to a conviction" (<?). 
 
 ** The truth of this sort of defence," said Mr. 
 Baron George, " is not always to be ascertained by 
 the direct testimony of the witnesses called to prove 
 it. Several witnesses are seldom produced in such 
 cases without its being known that they agree with 
 each other in the substantial and principal fact they 
 are to relate ; and as in general it is not to be ex- 
 pected that a prosecutor should come with evidence 
 prepared to meet this sort of defence, the usual test 
 
 (/) Reg. V. Cane and others, C. C. C, June 20, 185 1. 
 [vi) Reg. V. Rush, Norfolk Spr. Ass. 1849. 
 
 [n) Rex V. Haigh and others, 31 St. Tr. 1118 ; Reg. v. Hunter and 
 others, Court of Justiciary, Jan. 1838, Shorthand Report, p. 365. 
 (<?) Per Daly, B., in Rex v. Killen, 28 St. Tr. 1085.
 
 236 EXCULPATORY PRESUMPTIONS. 
 
 of its truth or of its falsehood, where they are un- 
 known to the jury, is a cross-examination of the 
 witnesses, kept asunder, and fairly conducted under 
 the eye and observation of the jury ; and here differ- 
 ences or contradictions, otherwise trivial, become 
 important in showing the truth or falsehood of such 
 narrative " (/). In such circumstances, if the story 
 be a fabrication, it is obviously far more easy for the 
 witnesses to acree on the mere oreneral fact of the 
 prisoner's presence at the time and place referred 
 to, than on the minute surrounding particulars {q) 
 
 The foregoing examples suffice to illustrate the 
 subject of exculpatory presumptions ; but it is obvious 
 that as inculpatory facts are infinitely diversified, 
 exculpatory facts must admit of the same extent of 
 variety, and that they may be of every degree of 
 force (r). In all such cases of conflicting presump- 
 
 [p) Rex V. Brenna7i^ 30 St. Tr. 79. 
 
 {q) Reg. V. Hunter. See note {n\ p. 235, supra. When the Editor 
 first joined the Midland circuit in the spring of 1852, Nottingham 
 enjoyed an unenviable notoriety as a place where manufactured alibis 
 flourished. The late Lord Chief Justice Jervis presided in the Crown 
 Court at Nottingham on that circuit, and after having torn a false 
 alibi to pieces by a most acute cross-examination, told the jury that 
 each county he went into had its own crop, and that the special crop 
 of the county of Nottingham appeared to be alibis. Mr. M. D. Hill, 
 the very learned and able first Recorder of Birmingham, once 
 defended a man at Nottingham who was acquitted on evidence of an 
 alibi. He afterwards sought Mr. Hill and confessed to him that the 
 alibi was a fabricated one, and described to him two methods by 
 which alibis were got up, either of which was difficult of detection. 
 They are as present to the Editor's recollection as when he heard the 
 story from Mr. Hill's lips, but he hesitates to put into print anything 
 which could help to suggest the means of success in such an 
 enterprise. 
 
 (r) Traitd de la Preuve, par Mittermaier, ch. 56.
 
 EXCULPATORY PRESUMPTIONS. 237 
 
 tions it is the duty of the jury, with the assistance 
 of the Court, to weigh and estimate the force of 
 each several circumstance of presumption, and to 
 act upon what appear to be the superior proba- 
 bilities of the case ; and if there be not a decided 
 preponderance of evidence to establish the guilt of the 
 party, to take the safe and just course, by abstaining 
 from pronouncing a verdict of guilt, where the 
 necessary light and knowledge to justify them in so 
 doing with the full assurance of moral certainty, is 
 unattainable.
 
 AMERICAN NOTES. 
 
 [Note to Chapter V.] 
 
 Conclusions Exculpatory Presu7nptions. 
 
 " Conclusive presumptions of law are also made in respect to 
 infants and married women. Thus, an infant under the age of 
 seven years is conclusively presumed to be incapable of commit- 
 ting any felony, for want of discretion ; and, under fourteen, a 
 male infant is presumed incapable of committing a rape. A female 
 under the age of ten years is presumed incapable of consenting 
 to sexual intercourse. Where the husband and wife cohabited 
 together, as such, and no impotency is proved, the issue is conclu- 
 sively presumed to be legitimate, though the wife is proved to have 
 been at the same time guilty of infidelity, and if a wife act in com- 
 pany with her husband in the commission of a felony, other than 
 treason or homicide, it is conclusively presumed that she acted 
 under his coercion, and consequently without any guilty intent." 
 Greenleaf on Evid., i6 ed. § 28. 
 
 Presumption of Coercion by Husband. 
 
 Where a wife was accused of being accessory to a murder by her 
 husband, proof that she tried to conceal the crime and to divert 
 suspicion from her husband was held not to overcome the pre- 
 sumption that she had acted under her husband's compulsion if 
 she had any part at all in the crime. State v. Kelly, 74 Iowa, 
 
 589. 
 
 Presumption that a Husband has Affection for his Wife. 
 
 It is to be presumed, there being no evidence to the contrary, 
 that a husband loves and will protect his wife. So if one is 
 accused of wife murder, he can claim the benefit of not only the 
 ordinary presumption of innocence, but of the equally favorable 
 presumption arising from the marital relation. State v. Moxley, 
 102 Mo. 374.
 
 237 3 AMERICAN NOTES. 
 
 To rebut this presumption, the prosecution may introduce any 
 evidence showing an alienation of affection and a desire to be rid 
 of the burdens and duties of the relation. So acts and declara- 
 tions may be given in evidence indicating that the accusetl 
 regarded his spouse with feelings of unkindncss, hatred, or 
 contempt. State 71. Cole, 63 Iowa, 695 ; People v. Hendrickson, 
 I Parker Crim. (N. Y.) 406 ; Mack v. State, 48 Wis. 271. 
 
 So the accused may be shown to have made an unsuccessful 
 attempt to get his spouse to consent to a divorce (State ?'. Jones, 
 3 S. E. 507) ; or to have f:iiled to obtain the pecuniary advantage 
 which he had expected from the marriage (People v. Hendrick- 
 son, I Parker Crim. (N. Y.) 406) ; or to have been guilty of adul- 
 tery during the life of the tleceased spouse. State v. Watkins, 
 9 Conn. 47 ; Wharton 7'. State, 73 Ala. 366. 
 
 The State may repel the presumption of conjugal affection by 
 proof that the marriage with deceased was bigamous and that de- 
 fendant immediately married a third woman (State 7>. Green, 35 
 Conn. 203), and by proof that defendant showed indifference as 
 to his wife's death. People v. Greenfield, 23 Hun, 454 ; affirmed 
 
 85 N. Y. 75- 
 
 Where a husband is charged with cruelty or violence towards 
 his wife, there is a legal presumption of his innocence, arising 
 from their relation, and the mutual affection by which it is com- 
 monly accompanied. State v. Green, 35 Conn. 205. 
 
 Prestimption of Innocence. 
 
 In Greenleaf on Evidence, § 34, it is said : " Thus, as men do 
 not generally violate the penal code, the law presumes every man 
 innocent ; but some men do transgress it, and therefore evidence 
 is received to repel this presumption. This legal presumption of 
 innocence is to be regarded by the jury, in every case, as matter 
 of evidence to the benefit of which the party is entitled." See 
 also Coffin v. U. S., 156 U. S. 432. But the statement that the 
 presumption of innocence is to be regarded as evidence is very 
 generally disapproved and is wholly illogical. See State v. Smith, 
 65 Conn. 283 ; Agnew v. U. S., 165 U. S. 36 ; Thayer, Prelim. 
 lYeatise on Evid., p. 551, and Wigmore's note to § 34, Greenleaf 
 on Evid., 1 6th ed. 
 
 The presumption that life continues relieves the prosecution of
 
 AMERICAN NOTES. 237 c 
 
 the necessity of introducing evidence to show that life continued 
 to exist up to the moment of the fatal blow. The presumption 
 of innocence does not overcome the foregoing presumption. 
 "The prisoner's child was seen alive in her arms, at half-past six 
 o'clock in the morning, healthy and vigorous ; and at eleven at 
 night it was found dead, with marks of suffocation on its person. 
 The presumption then is, that it was alive when these marks were 
 impressed." Com. v. Harman, 4 Pa. St. 269, 273. 
 
 Where defendant was charged with the murder of his daughter, 
 the jury should be charged that innocence is presumed, but not 
 that the law presumes an affection for one's child. Hawes v. 
 State, 88 Ala. 37. 
 
 The presumption of innocence casts the burden of proving 
 guilt upon the State, but it does no more. While it calls for evi- 
 dence from the State, it is not itself evidence for the accused. 
 State V. Smith, 65 Conn. 283. 
 
 Self- Defence in Homicide. 
 
 The accused may show the imminence of danger to himself 
 from the deceased, and likewise his apprehension of danger. 
 
 In Duncan v. State, 84 Ind. 204, he was allowed to testify 
 that he believed his life to be in danger. State v. Collins, 
 32 Iowa, 36 ; Williams v. Com., 90 Ky. 596 (where such belief 
 was admitted after proof that deceased had pointed a gun at 
 defendant). See Com. v. Crowley, 165 Mass. 569; cotifra, as 
 to defendant's belief and apprehensions. State v. Gonce, 87 
 Mo. 627. 
 
 The conduct of the deceased at the time of the homicide may 
 be proved to support the claim of self-defence on the part of 
 the accused. Pritchett v. State, 22 Ala. 39, 58 Am. Dec. 250; 
 Williams v. People, 54 111. 422 ; Frody v. State, 67 Tenn. 349. 
 
 The manner in which the deceased advanced upon the defend- 
 ant may be shown. Frody v. State, 67 Tenn. 349. 
 
 The defendant may show that deceased made a vicious as- 
 sault upon another just prior to the homicide, but he cannot 
 show that such other person's nerves and mind were perma- 
 nently injured. State v. Sorenson, 32 Minn. 118; 19 N. W. 
 73S. 
 
 The defendant in homicide may show that the deceased said
 
 237^ AMERICAN NOTES. 
 
 before death, " I would have gotten him if he had not been too 
 quick for me," as tending to prove self-defence. Brown v. State, 
 74 Ala. 4 78. 
 
 The defendant may show that he intervened in a quarrel be- 
 tween deceased and another and may prove the character of that 
 quarrel. Prior ?'. State, 77 Ala. 56. 
 
 A wife who killed her husband may show that he was attack- 
 ing her with a hoe and that he had at other times attacked and 
 threatened her. Williams v. State (Tex.), 70 S. W. 756. 
 
 The defendant's reputation for peace is relevant to show the 
 probability that he acted in self-defence. State v. Cushing, 14 
 Wash. 527, 53 Am. St. Rep. 883. 
 
 But evidence that the defendant asked another to go to the 
 assistance of the deceased after the injury is no evidence to 
 prove self-defence. State ?'. Roberts, 63 Vt. 139. 
 
 Where the defendant claimed that he killed deceased defend- 
 ing himself from a mob, he may prove the cries of the mob from 
 the time it formed to show its temper and purpose. Goins v. 
 State, 46 Ohio St. 457. 
 
 Previous Attacks by Deceased. 
 
 The defendant, in order to corroborate other evidence of self- 
 defence, may show that the deceased had made a previous attack 
 on him. Gunter v. State, in Ala. 23, 56 Am. St. Rep. 17; 
 State V. Graham, 61 Iowa, 608; Jackson v. State, 28 Tex. App. 
 108. 
 
 But such evidence is not admissible where there is no evidence 
 upon which to base a reasonable inference that the defendant 
 acted in self-defence. State v. Jefferson, 43 La. Ann. 995. 
 
 Attacks by Deceased on Others. 
 
 To show who was the aggressor where evidence is conflicting, 
 the defendant may show that the deceased attacked others on 
 the way to the scene of the homicide. State v. Beird (Iowa), 
 92 N. W. 694. 
 
 Reasonable Apprehension of Danger. 
 
 Where the defendant, charged with assault with intent to kill, 
 had fired at individuals whom he believed had been members of a
 
 AMERICAN NOTES. 237^ 
 
 bnnd of Whitecappers that had assaulted the defendant, evidence 
 of the W'hitecapping assault is admissible to show the ground 
 for the defendant's apj^rehension of danger when he fired. 
 Davids v. People, 192 111. 176. 
 
 The defendant, in homicide, may not prove that the deceased 
 had had fears of an attack by other parties. State v. Patrick, 
 48 N. C. 443 ; Woolfolk v. State, 85 Ga. 69 ; Com. v. Schmous, 
 162 Pa. 326. 
 
 In Boyle v. State, 97 Ind. 322, the defendant was allowed 
 to testify that the deceased had told him of assaults made 
 by deceased upon others and that he preferred a knife to a 
 gun. 
 
 The defendant may show that he had been told that deceased 
 was a dangerous man, where the issue is self-defence, to show 
 that he had reasonable ground for apprehension. State v. Cross, 
 68 Iowa, 180; People v. Powell, 87 Cal. 348, 11 L. R. A. 75. 
 
 The defendant may not prove that he told a third party that 
 he was afraid of the deceased, when the latter had at that time 
 done nothing to excite fear. State v. Carey, 56 Kan. 84, 42 
 Pac. 371. 
 
 Where the claim was self-defence the defendant was not al- 
 lowed to prove certain previous acts of precaution on his part to 
 show his fear of the accused. Nunn v. Com., t^t, S. \V. 941. 
 
 Evidence that defendant was in such nervous condition as to 
 be likely to apprehend violence and danger is not admissible. 
 State V. Shoultz, 25 Mo. 128; State v. Sorenson, 32 Minn. 118. 
 
 The belief of the defendant that the deceased would carry out 
 his threat to kill is not admissible. People v. Ryan, 55 Hun, 214. 
 
 Defendant may prove that deceased had said in defendant's 
 presence that he carried firearms. People v. Adams, 137 Cal. 
 580. In such case the State may show that deceased was not 
 armed. Ibid. 
 
 Intention of the Deceased. 
 
 What the real intention of the deceased toward the defendant 
 was is immaterial on the question of self-defence ; it is the 
 appearance of intention as presented to the defendant that must 
 justify him. People v. Fitchpatrick, 106 Cal. 286, 39 Pac. 605. 
 Yet surely the real intention is some evidence as to what the 
 appearance of intention was.
 
 237/ AMERICAN NOTES. 
 
 Size and Strength of Deceased. 
 
 The defendant may show that the deceased was larger and 
 stronger than himself. Smith v. U. S., i6i U. S. 85 ; Com. v. 
 Barnacle, 134 Mass. 215, 45 Am. Rep. 319. 
 
 The defendant was allowed to show that he was small, weak, 
 and nearly blind, while deceased was violent and powerful. 
 Brumley v. State, 21 Tex. App. 222, 17 S. W. 140. 
 
 The defendant may show that the deceased was a large man, 
 was in the habit of carrying arms, and started the fight. State v. 
 Yokum (S. D.), 84 N. W. 389. 
 
 Apprehension of Others. 
 
 The defendant is not allowed to show that third persons 
 thought or said he was in danger from the deceased. Hudgins 
 V. State, 2 Ga. 173; State v. Rhoads, 29 Ohio St. 171 ; State v. 
 Summers, 36 S. C. 479 ; contra, Stroud v. Com. (Ky.), 19 S. W. 
 976. 
 
 But in People v. Lilly, 38 Mich. 270, third parties were al- 
 lowed to testify that deceased's conduct was so violent as to 
 make them afraid. 
 
 And the defendant may prove that third parties had told 
 him that the deceased was a dangerous man. Childers v. 
 State, 30 Tex. App. 160, 16 S. W. 903. 
 
 In Phipps V. State, 36 Tex. Cr. R. 216, t,() S. W. 753, an 
 officer was allowed to say that the reason he followed deceased to 
 defendant's place of business was that he looked for trouble. 
 
 Hatred of Defendant by Deceased. 
 
 Letters of deceased to third parties, showing bitter hatred of 
 defendant, the contents of which had been communicated to the 
 defendant, may be given in evidence. Ball v. State, 29 Tex. 
 App. 107, 14 S. W. 1012. 
 
 Previous difficulties and ill-feelings may be proved by the de- 
 fendant in corroboration of other evidence reasonably indicating 
 that the act may have been in self-defence. DeForest v. State, 
 21 Ind. 23; State v. Schleagel, 50 Kan. 325 ; Russell v. State, 
 1 1 Tex. App. 2 88.
 
 AMERICAN NOTES. 237^ 
 
 Self- Defence — Threats of Deceased. 
 
 Threats made by the deceased against the accused are admis- 
 sible whether they were communicated to the accused or not. If 
 communicated, they would assist in proving self-defence, and 
 that the defendant was under a reasonable apprehension of dan- 
 ger. If uncommunicated, they would at least tend to show that 
 the deceased was the aggressor. " The philosophy of the matter 
 is that where there has been an encounter, and it is not shown by 
 direct evidence who was the assailant, threats of an intention to 
 assail are some evidence of an assault having been made by the 
 one who made the threats." Wilson v. State, 30 Fla. 242 \ 
 Stokes V. People, 53 N. Y. 174 ; State v. Evans, 33 W. Va. 426 ; 
 Babcock v. People, 13 Colo. 515. 
 
 The defendant may show that he fired because he thought 
 the prosecuting witness was advancing with a gun, though it 
 actually was an umbrella, and to show ground for such appre- 
 hension he may prove prior threats and altercations. Enlow 
 V. State, 154 Ind. 664 ; Johnson 7-'. State (Miss.), 27 So. 880 
 (similar). 
 
 Previous threats of the deceased admitted as a link in the evi- 
 dence of self-defence. Harkness v. State (Ala.), 30 So. 73 ; 
 Bell V. State, 69 Ark. 148. 
 
 Previous threats of the deceased may be proved as tending to 
 show that the accused acted in self-defence. Pritchett v. State, 
 22 Ala. 39, 58 Am. Dec. 50 ; Williams v. People, 54 111. 422 
 (threats to " clean out and whip" the defendant); Brumley v. 
 State, 21 Tex. App. 222 (threats to kill) ; Ball v. State, 29 Tex. 
 App. 107 (same). 
 
 Threats by the deceased against defendant because of slan- 
 ders published by the latter may be proved. State v. Bartlett, 
 170 Mo. 658, 59 L. R. A. 756. 
 
 Defendant may prove threats of the deceased to kill him, and 
 that he sent a third party to the deceased to effect a compromise. 
 Everett v. State, 30 Tex. App. 68 2. 
 
 On the issue of self-defence the accused may show prior threats 
 of the deceased known to him, the existence of a grudge, and 
 prior assaults by the deceased on defendant. State v. Scott, 24 
 Kan. 68 ; Rippy v. State, 39 Tenn. 217.
 
 237 ^' AMERICAN NOTES. 
 
 Uncommunicated Threats of Deceased. 
 
 Threats of the deceased that had not been communicated to 
 the defendant are not admissible to show that he had a reason- 
 able apprehension of danger, but they may be admissible to show 
 the state of mind and intentions of the deceased. State v. Faile, 
 43 S. C. 52 ; State v. Gushing, 14 Wash. 527, 53 Am. St. Rep. 
 883 ; State v. Evans, 33 W. Va. 417 ; State v. Vaughan, 22 Nev. 
 285; State V. Fisher, 33 La. Ann. 1344; State v. Elliott, 45 
 Iowa, 486. 
 
 Evidence of previous threats on the part of the deceased against 
 the defendant is admissible to corroborate evidence indicating 
 that the deceased was the assailant. Lester v. State, 37 Fla. 382 ; 
 Monroe v. State, 5 Ga. 85 ; Prine v. State, 73 Miss. 838 ; State 
 V. Harrod, 102 Mo. 590; Stokes v. People, 53 N. Y. 164. Such 
 evidence is not admissible where there is no doubt that the de- 
 fendant was the aggressor, or where he himself invited the fight. 
 State V. Alexander, 66 Mo. 148 ; Mealer v. State, 32 Tex. Cr. R. 
 102; Robert v. State, 68 Ala. 515; Steele v. State, 2)2) Fl^- 
 348 ; State v. Wilson, 43 La. Ann. 840. 
 
 Evidence of previous threats on the part of the deceased is 
 not admissible when there is not evidence to show that he did 
 any act indicating his intention to carry out the threats. Jenkins 
 V. State, 80 Md. 72 ; State v. Kenyon, 18 R. L 217 ; People v. 
 Campbell, 59 Cal. 243, 43 Am. Rep. 257; Harris v. State, 47 
 Miss. 318 ; Leigh v. People, 113 111. 372. 
 
 Proof of former difficulties and ill-feeling between the deceased 
 and the defendant cannot be admitted in evidence when there 
 is absolutely no evidence to show that the defendant may have 
 acted in self-defence. Rutledge v. State, 88 Ala. 85. 
 
 Self-Defence — Character of Deceased. 
 
 The character of the deceased in cases of homicide is some- 
 times admitted. 
 
 In Williams v. Fambro, 30 Ga. 233, the deceased was a slave, 
 and the defendant claimed that he was killed while acting insub- 
 ordinately. Evidence to show the previous insubordinate char- 
 acter of the slave was admitted. State v. Spendlove, 44 Kan. r, 
 holds that where there is doubt as to whether the defendant 01
 
 AMERICAN NOTES. 237 Z 
 
 the deceased was the aggressor, such character evidence is 
 admissible. 
 
 In Copeland v. State, 41 Fla, 320, character for " general cussed- 
 ness" was excluded. See also, Com. v. Haskins (Ky.), 35 S. W. 
 284 ; Fields v. State, 47 Ala. 603 ; People v. Murray, 10 Cal. 309. 
 
 The conduct of the deceased at the time of the homicide is 
 to be construed with reference to his character as theretofore 
 known, and hence such character is admissible. Pritchett v. 
 State, 22 Ala. 39, 58 Am. Dec. 250. 
 
 Defendant may show that deceased had just lost money to 
 him at gambling and that at such times he was usually a danger- 
 ous man. State v. Hunter (Iowa), 92 N. W. 872. 
 
 The dangerous character of the deceased is immaterial where 
 the defendant denies the killing altogether. Manning v. State, 
 79 Wis. 178. 
 
 To show self-defence where the defendant is charged with 
 assault with intent to kill, he may prove the dangerous character 
 of the prosecuting witness. Upthegrove z'. State, 37 Ohio St. 662. 
 
 The deceased may be shown to have been a dangerous and 
 powerful man where the issue is self-defence. Brownell v. People, 
 38 Mich. 732 ; State v. Floyd, 51 N. C. 392. 
 
 The character of the deceased may be admissible in evidence 
 because certain acts and motions on the part of a man known to 
 be dangerous justify a much greater apprehension of danger and 
 much more sudden steps to prevent such danger, than the same 
 acts on the part of other men. Pritchett v. State, 22 Ala. 39, 
 58 Am. Dec. 250 ; Perry ik State, 94 Ala. 25 ; State v. Keefe, 54 
 Kan. 197. 
 
 Where the defendant, charged with homicide, has given evi- 
 dence to show that he killed the deceased because there was 
 reasonable ground to fear danger, he may prove the violent and 
 dangerous character of the deceased. Nichols v. People, 23 
 Hun, 165 ; State v. Graham, 6r Iowa, 608 ; State v. Downs, 91 
 Mo. 19 ; Williams v. State, 74 Ala. 18 ; Marts v. State, 26 Ohio 
 St. 162 ; Williams v. State, 14 Tex. App. 102, 46 Am. Rep. 237 ; 
 Smith V. U. S., 161 U. S. 85. 
 
 At least he may prove the dangerous character of the deceased 
 where he knew of such dangerous character and the deceased did 
 some overt act indicating his purpose to attack, Hudson v.
 
 2377 AMERICAN NOTES. 
 
 State, 6 Tex. App. 565, 32 Am. Rep. 593; State v. Nash, 45 
 La. .\nn. 1137; Smitii 7'. U. S., 161 U. S. 85 ; State v. Nett, 50 
 Wis. 524. 
 
 Evidence of the turbulent character of the deceased may be 
 admissible on the question of self-defence. Alexander v. Com., 
 105 Pa. I. 
 
 Defendant may prove the character of the deceased as a dan- 
 gerous man. Jenkins v. State, 80 Md. 72. 
 
 After showing that the deceased was intoxicated when killed, 
 the defendant may show that the deceased was dangerous when 
 drunk. State v. Manns (\V. Va.), 37 S. E. 613. 
 
 Where the accused claimed self-defence, he was not allowed to 
 show that during a previous quarrel the deceased had armed him- 
 self with an ice-pick, for the purpose of showing deceased to have 
 been a dangerous character. State v. Mims, 36 Ore. 315. 
 
 Where the defendant shot the deceased while the latter was 
 attacking with his fists, it is not competent to show that the 
 deceased was a trained boxer on the issue of self-defence. State 
 V. Talmage, 107 Mo. 543. 
 
 /deputation for Carrying Weapons. 
 
 Where deceased spat in defendant's face and started to draw 
 a pistol before defendant fired, it may be shown that deceased 
 was reputed to use deadly weapons in fights. State v. Ellis, 30 
 Wash. 369. 
 
 The defendant has a right to show that the man he killed was 
 generally reputed to carry dangerous weapons, where the issue is 
 self-defence. Glenewinkel v. State (Tex.), 61 S. W. 123. 
 
 On the issue of self-defence the defendant may show that the 
 deceased was in the habit of carrying weapons, and that he had 
 knowledge of such habit. Wiley v. State, 99 Ala. 146; State v. 
 Graham, 61 Iowa, 608; Riley v. Com., 94 Ky. 266; King v. 
 State, 65 Miss. 576, 7 Am. St. R. 681. But if the defendant 
 had no such knowledge before the homicide he cannot prove the 
 fact. Garner v. State, 31 Fla. 170. 
 
 Evidence Required before Character is Admissible. 
 
 Evidence of the dangerous character of the deceased is not 
 admissible to indicate the possibility that the defendant acted in
 
 AMERICAN NOTES. 2^:^"] k 
 
 self-defence unless that possibility has already been indicated by 
 other evidence. Eiland v. State, 52 Ala. 322 ; Jones v. People, 
 6 Colo. 452, 45 Am. Rep. 526 ; Gardner v. State, 90 Ga. 310, 
 35 Am. St. R. 202 ; People v. Garbutt, 17 Mich. 9, 97 Am. Dec. 
 i6z; Abbott z'. People, '^d N. Y. 460; Com. v. Straesser, 153 
 Pa. 451 ; Walker v. State, 28 Tex. App. 503; Carle v. People, 
 200 111. 494. 
 
 Where there is no evidence that the deceased manifested any 
 intention to attack the defendant, evidence of the deceased's 
 dangerous character is not admissible. Cannon v. People, 141 
 111. 270; Lang V. State, 84 Ala. i, 5 Am. St. R. 324; Doyal v. 
 State, 70 Ga. 134; State 7'. Vallery, 47 La. Ann. 182, 49 Am. 
 St. R. 363 ; Irvin v. State, 43 Tex. 236 ; State v. Harris, 59 Mo. 
 
 550- 
 
 The dangerous character of the deceased cannot be shown in 
 defence where the deceaseei did nothing whatever to excite appre- 
 hension on defendant's part. State v. Haab, 105 Pa. 230; State 
 V. Morrison (W. Va.), 3S S. E. 4S1 ; Slate v. Madison (W. Va.), 
 38 S. E. 492 ; State v. Napoleon, 104 Pa. 164. 
 
 If the trial judge believes the evidence in support of the claim 
 of self-defence to be totally unworthy of belief, evidence of the 
 dangerous character of the deceased should not be admitted. 
 State V. Janvier, 37 La. Ann. 644. 
 
 But if the evidence affords even slight ground for the inference 
 of self-defence it is error to exclude the evidence of deceased's 
 character. Garner v. State, 28 Fla. 113, 29 Am. St. R. 232. 
 
 The defendant may not show the quarrelsome character of the 
 deceased where the latter was killed with a rock while running 
 away from the defendant. Jackson v. Com. (Va.), 36 S. E. 487. 
 
 In State v. Rollins, 113 N. C. 722, it was held that the danger- 
 ous character of the deceased may not be proved, even on the 
 issue of self-defence, unless it be shown that the defendant knew 
 of such dangerous character. 
 
 " It is well and generally known that there are some violent 
 and dangerous men in this country, who are in the habit of 
 carrying pistols, belted behind them and in their pockets, who 
 never think of fighting in any other way than with deadly weapons, 
 who are expert in using them, and who, especially when intoxi- 
 cated, bring on and press to the extreme of outrage their deadly
 
 237^ AMERICAN NOTP:S. 
 
 encounters for causes and provocations that would be regarded 
 as utterly trivial by peaceable men ; and that if one of such ])er- 
 sons, while engaged in an angry altercation, should suddenly step 
 back and rapidly throw his hand behind him, it might readily be 
 understood by those who saw it to mean that he was in the act 
 of drawing a pistol to use it. The same act by one of the great 
 mass of our peaceable citizens who are not in the habit of carry- 
 ing weapons would suggest no such thought, and in such case 
 the pistol would have to be drawn and exhibited before any 
 such thing would be conceived, unless there had been some very 
 extraordinary provocation. 
 
 " This state of things here is a substantial reality, well known and 
 ostensible to the perception of every one at all familiar with the 
 subject ; and men act upon it, and are compelled to act upon it, 
 in defending themselves from deadly assaults. ... It may be 
 deduced from these authorities that the general character of the 
 deceased for violence may be proved when it would serve to 
 explain the actions of the deceased at the time of the killing ; 
 that the actions which it would serve to explain must first be 
 proved before it would be admissible as evidence ; that if no 
 such acts were proved as it would serve to explain, its rejection 
 when offered in evidence would not be error ; and that, if rejected 
 when a proper predicate has been established for its admission, 
 it is held to be error." Horbach v. State, 43 Tex. 250. 
 
 Character of Third Parties. 
 
 Where the defendant claims to have been attacked by deceased 
 and a third party, he may prove the dangerous character of such 
 third party. Tiffany v. Com., 121 Pa. 165, 6 Am. St. R. 775. 
 
 Where during a fight between the defendant and a negro, a 
 third party was killed, the defendant may show the tough charac- 
 ter of the negro, and the State may rebut the testimony. Warren 
 V. Com., 99 Mass. 370. 
 
 Defence of Another. 
 
 Defendant may prove that the deceased and third parties who 
 were assaulting defendant's brother had previously made threats. 
 People V. Curtis, 52 Mich. 616.
 
 AMERICAN NOTES. 237 m 
 
 Where defendant claimed that the deceased was about to 
 assault defendant's sister, previous threats of the deceased against 
 the sister may be proved, even though they were not known by 
 the defendant. State v. Felker, 27 Mont. 451. It may be 
 shown too that defendant knew of other assaults made by the 
 deceased upon the woman several months before. Ibid. 
 
 Defendant cannot testify that his belief was that the deceased 
 was about to attack defendant's son ; the material thing is the 
 actual ground for such belief. State v. Downs, 91 Mo. 19. 
 
 Where defendant claims that he was protecting his wife, the 
 State may show that she kept a house of prostitution to show 
 that deceased may have been there for a purpose not felonious. 
 People V. Pierson, 2 Idaho, 71, 3 Pac. 688. 
 
 Rebuttal of Self-Defence. 
 
 It is competent for the State to show threats of the defendant 
 to rebut his claim of self-defence. Bolzer v. People, 129 111. 112. 
 
 The State may show all the circumstances of the altercation, 
 threats made, relative size and strength of the parties. Palmore 
 V. State, 29 Ark. 248. 
 
 The State may show in rebuttal that there was no great dif- 
 ference in size between the defendant and the deceased. Wilkins 
 V. State, 98 Ala. i, 13 South. 312. 
 
 Also that the accused is larger and stronger than the deceased. 
 Hinch V. State, 25 Ga. 699. 
 
 Where defendant had shown that all the appearances pointed 
 to danger to himself from the deceased, the State was not allowed 
 to show in rebuttal that the deceased was on a peaceful errand 
 past defendant's house. Erumley v. State, 21 Tex. App. 222, 
 17 S. W. 140. 
 
 To rebut the claim of self-defence the State cannot prove 
 statements of the deceased that the trouble was over and that he 
 did not want a gun, when such statements were not known by 
 the defendant. They did not lessen the appearance of danger 
 to him. May v. Com., 3 Ky. Law Rep. 474. 
 
 The State may prove the peaceable character of the deceased 
 to rebut defendant's claim of self-defence. Fields v. State, 134 
 Ind. 46.
 
 237^' AMERICAN NOTES. 
 
 Intoxication as a Defence. 
 
 Intoxication admitted to prove incapacity to commit homicide. 
 State V. Home, 9 Kan. 128. 
 
 Excessive use of morphine and whiskey admitted to show 
 general criminal irresponsibility. Franklin v. Franklin, 90 Tenn. 
 49. 
 
 As negativing the existence of an intent, the defendant may 
 show that he was drunk (Leroy v. State (Ala.), 25 So. 247), or 
 he may sliow that he was ignorant of facts which made his act 
 criminal. Farrell v. State, 32 Ohio St. 456. 
 
 The defendant may prove his incapacity to commit the crime 
 charged ; c. g. illness, paralysis, intoxication. " In such case the 
 intoxication is not shown for the purpose of excuse or mitigation 
 of the offence charged, but as evidence tending to show that he 
 was not jKesent and did not commit the acts constituting the 
 offence. Evidence of this kind would have but little weight 
 against direct evidence showing the actual presence of the accused 
 at the time and place when and where the crime was committed ; 
 but certainly in the absence of any such direct evidence, the ac- 
 cused may give in evidence any fact which would have a natural 
 tendency to render it improbable that he was there and did the 
 acts complained of; and the fact that drunkenness was the thing 
 which tended to prove such improbability can make no differ- 
 ence." Ingalls V. State, 48 Wis. 647. 
 
 Experiments to Show Impossibility. 
 
 Where it was shown that after the time of an offence the de- 
 fendant caught up with and passed three wagons, he should be 
 permitted to give evidence of experiments indicating that if de- 
 fendant had committed the offence he could not have passed the 
 wagons. Clark v. State (Tex,), 40 S. W. 992. 
 
 Evidence that a Third Person Did the Act. 
 
 It seems that the defendant may not show that another has 
 previously been convicted of the same crime. State v. Smarr, 
 121 N. C. 669; Kazer v. State, 5 Ohio, 280 (conviction of an- 
 other for the same arson). 
 
 The confession of a third person that he committed the crime
 
 AMERICAN NOTES. 237 
 
 in question cannot be proved by the accused, for the reason that 
 the law excludes it as hearsay. 
 
 The defendant may give evidence indicating that the crime 
 charged was committed by another, and may then show that such 
 other person had a motive to commit the crime and what it was. 
 Green v. State, 154 Ind. 655. 
 
 In Com. V. Felch, 132 Mass. 22, the defendant, charged with 
 an attempt at abortion causing death, was not allowed to prove 
 that the deceased had told a witness that she was pregnant by 
 one not the defendant, and that if that one did not procure an 
 abortion she would do so herself. But see Com. v. Trefethen, 
 157 Mass. 180. 
 
 The defendant may show that the crime was committed by an- 
 other, even though that other has already been acquitted (People 
 V. Mitchell, 100 Cal. 328), and the evidence offered is admissible 
 even though it would not be sufficient to prove such other 
 person's guilt beyond a reasonable doubt (Sidney v. Com., i Ky. 
 Law Rep. 120) ; but the mere fact that another has been indicted 
 for the crime is not admissible. Taylor v. Com., 90 Va. 109. 
 
 Any evidence tending to show that another than the defend- 
 ant committed the crime is competent. Synon v. People, 188 
 111. 609. 
 
 Bastardy Cases. 
 
 In bastardy cases the defendant may show intercourse by the 
 woman with other men at about the time conception must have 
 taken place. State v. Seevers, 108 Iowa, 738; Eddy v. Gray, 
 4 Allen, 435; State z'. Warren, 124 N. C. 807; Humphrey z/. 
 State, 78 Wis. 571 ; Benham v. Richardson, 91 Ind. 82, 
 
 Motives of Third Persons. 
 
 That a third person had a motive to do the act of which the 
 defendant is accused is sometimes admitted and sometimes not. 
 It would, of course, have some v^^eight in the defendant's favor. 
 
 Cases admitting such evidence : Crawford v. State, 12 Ga. 142 ; 
 State V. Johnson, 30 La. Ann. 921 ; contra, Com. v. Abbott, 
 130 Mass. 475; Tatum v. State, 131 Ala. 32; Horn v. State 
 (Wye), 73 Pac. 705. 
 
 The defendant cannot prove that others had a motive to do the
 
 237/ AMERICAN NOTES. 
 
 act cliarged, unless he in other ways connects them with the act. 
 Tatuni V. State (Ala.), 31 So. 369. 
 
 The defendant may prove that another had a motive to commit 
 the crime. Sawyers v. State, '&2> l^i'^'i- 694. 
 
 Where there is no direct evitlence that the defendant struck 
 the fatal blow, he may show that the deceased had had a quarrel 
 with another about the time of the homicide. Crawford v. State, 
 12 Ga. 142 ; State v. Johnson, 30 La. Ann. 921. 
 
 It is immaterial that others had motives to commit the crime, 
 where it is shown that they had no opportunity. Means v. State, 
 10 Tex. App. 16, 38 Am. Rep. 640. 
 
 The defendant cannot show that others had a motive to commit 
 the crime in question unless he further shows that they had the 
 opportunity. Ogden v. State (Tex.), 58 S. W . 1018, 
 
 Threats of Third Persons. 
 
 Courts generally do not allow the accused to introduce evi- 
 dence that third persons had threatened to do the act in ques- 
 tion ; although it cannot be doubted that proof that a third 
 person did the act in question excludes the conclusion that the 
 accused did it ; and if threats by the accused tend to show that he 
 did the act, then why should not threats of third persons tend to 
 show that they did it? The reasons given for excluding such tes- 
 timony are various. See State v. Beaudet, 53 Conn. 543 ; School- 
 craft V. People, 117 111. 271; State v. Fletcher, 24 Ore. 295; 
 State V. Crawford, 99 Mo. 74; Carlton v. People, 150 111. iSi. 
 But see Alexander v. U. S., 138 U. S. 353, and Worth v. R. R. 
 Co., 51 Fed. Rep. 171, where such evidence was admitted. 
 
 The defendant cannot show that others had threatened to kill 
 the deceased in the absence of any other evidence tending to 
 connect such others with the homicide in question (Woolfolk v. 
 State, 81 Ga. 551 ; State v. Mann, 83 Mo. 589 ; State v. Duncan, 
 28 N.C. 236 ; Henry v. State (Tex.), 30 S. W. 802) ; but in con- 
 nection with such other evidence, threats by the third persons 
 may be proved (Morgan v. Com., 77 Ky. 106) ; also where the 
 evidence against the defendant is entirely circumstantial. Murphy 
 V. State, 36 Tex. Cr. Rep. 24; Leonard v. Terr., 2 Wash. T. 
 
 381. 
 
 In State v. Davis, 77 N. C. 483, the defendant was not allowed
 
 AMERICAN NOTES. 237 q 
 
 to show that a third person went toward the home of the de- 
 ceased, armed and threatening to kill the deceased. See also 
 State V. Lambert, 93 N. C. 618. 
 
 In Alexander v. U. S., 138 U. S. 353, the defendant, charged 
 with homicide, was allowed to show that at the time the deceased 
 disappeared a party of armed men were looking for him with 
 threats to kill him for eloping with a married woman. 
 
 Suicide. 
 
 The defendant may give in evidence other possible hypotheses 
 upon which the act charged may be explained. He may show 
 that the deceased may himself have inflicted the wound causing 
 death. State v. Lee, 65 Conn. 265. 
 
 The absence of motive on the part of the defendant may be 
 considered by the jury as supporting the claim that the deceased 
 shot himself after wounding the defendant. Smith v. State 
 (Neb.), 85 N. W. 49. 
 
 Deceased'' s Intention to Commit Suicide. 
 
 The defendant may show that the deceased had planned to 
 commit suicide, for that would make it more or less probable 
 that the deceased was not killed by the defendant. " It may be 
 true that an unmarried woman pregnant with child, if she has an 
 intention to commit suicide, does not always carry that intention 
 into effect, although she have an opportunity ; but it is impossible 
 to say that the actual existence of such an intention does not tend 
 to throw some light upon the cause of death of such a woman 
 when found dead under circumstances not inconsistent with the 
 theory of suicide." Com. v. Trefethen, 157 Mass. 180; State v. 
 Asbell, 57 Kan. 398. 
 
 The defendant in homicide may prove a declaration of the 
 deceased that it was his intention to commit suicide, where the 
 circumstances are not inconsistent with that manner of death. 
 Com. V. Trefethen, 157 Mass. 180, 24 L. R. A. 235 ; People v. 
 Gehmele, i Sheld. (N. Y.) 251; Blackburn z/. State, 23 Ohio 
 St. 146 ; Boyd v. State, 82 Tenn. 161. 
 
 Cases where such evidence was not admitted. State v. Pun- 
 shon, 124 Mo. 448, 133 Mo. 44; State z/, Fitzgerald, 130 Mo. 
 407.
 
 237 A- AMERICAN NOTES. 
 
 And melancholy statements by the deceased that he was sick 
 of life are not admissible where there is no claim that he com- 
 mitted suicide. State v. Foamier, 68 Vt. 262. 
 
 Motives for Suicide. 
 
 The defendant may show that the deceased had a motive for 
 suicide, as that deceased was an unmarried woman and pregnant. 
 Spencer Cowper's Trial, 13 How. St. Tr. 116O; Blackburn v. 
 State, 23 Ohio St. 165. 
 
 Complaint. 
 
 " In criminal cases the conduct of the person against whom 
 the offence is said to have been committed, and in {particular the 
 fact that soon after the offence he made a complaint to persons 
 to whom he would naturally complain, are deemed to be relevant. 
 The terms of the complaint are irrelevant; except that in a case 
 of rape or other sexual offence where the consent of the person 
 against whom the offence was committed to the act charged as 
 an offence is in issue, the terms of the complaint are relevant as 
 showing that the conduct of such person was consistent with the 
 denial of consent." Stephen's Dig. Evid., Art. 8. 
 
 The American authorities generally state the rule that the fact 
 of complaint is relevant as applying only to prosecutions for rape 
 and other offences against women. American Law Review, vol. 
 xiv, pp. 829-838; Haynes v. Com., 28 Gratt. (Va.) 942. 
 
 In rape cases the fact of complaint may be shown. State v. 
 Carroll, 67 Vt. 477; Com. v. Phillips, 162 Mass. 504 ; Stevens. 
 V. People, 158 Ill.iii ; People v. Stewart, 97 Cal. 238 ; Cross v. 
 State, 132 Ind. 65 ; Parker v. State, 67 Md. 329; Lee v. State, 
 74 Wis. 45 ; Johnson v. State, 17 Ohio, 593 ; Oleson v. State, 11 
 Neb. 276, 38 Am. Rep. 366. 
 
 A delay of weeks or months, if explained, does not render 
 the fact of complaint inadmissible (State v. Wilkins, 66 Vt. i) ; 
 nor does that of more than a year ; it simply affects the 
 weight of the evidence. State v. Byrne, 47 Conn. 465, 466, 
 467. 
 
 The conduct of a woman subsequent to the commission of an 
 alleged abortion may be shown in a prosecution against one for 
 performing the abortion. State v. Lee, 69 Conn. 196.
 
 AMERICAN NOTES. 237.? 
 
 Evidence of constancy in accusation is admissible. State v. 
 De Wolf, 8 Conn. 99. 
 
 Terms of Complaint Irrelevant. 
 
 The terms of the complaint are irrelevant. State v. Knapp, 
 45 N. H. 148, 155. 
 
 But in prosecutions for offences against women the terms of 
 the complaint are considered relevant. State v. Kinney, 44 
 Conn. 153, 26 Am. Rep. 436 ; Burt ?'. State, 23 Ohio St. 394; 
 Hill V. State, 5 Lea (Tenn.), 725. See also Benton v. Starr, 
 58 Conn. 285. So where the complainant is a girl of tender 
 years. Harmon v. State, 70 Wis. 448. 
 
 "The count upon which Lillyman (R. v. Lillyman (1896), 
 2 Q. B. 167) was substantially tried, and upon which alone {ibid. 
 at p. 170) he was convicted, charged that he unlawfully at- 
 tempted to have carnal knowledge of a girl under sixteen and 
 over thirteen. The question of her consent was therefore imma- 
 terial (Criminal Law Amendment Act, 1S85, § 5, by which the 
 offence was created). In giving her evidence, however, the girl 
 asserted that she did not consent to the attempt. Sir Henry 
 Hawkins admitted evidence of the terms of a complaint made by 
 the girl to her mistress, in the absence of the prisoner, very 
 shortly after the commission of the acts charged. The prisoner 
 was convicted, and the case reserved on the question whether 
 this evidence was admissible. The Court (Lord Russell, C. J., 
 Pollock, B., Hawkins, Cave, and Wills, JJ.) affirmed the con- 
 viction. The ground of the decision is clearly stated in two 
 passages of the judgment of the Court, delivered by Sir Henry- 
 Hawkins. ' It (the complaint) is clearly not admissible as evi- 
 dence of the facts complained of. . . . The complaint can only 
 be used as evidence of the consistency of the conduct of the 
 prosecutrix with the story told by hei in the witness-box, and as 
 being inconsistent with her consent to that of which she com- 
 plains ' {ibid, at p. 170). * The evidence is admissible only upon 
 the ground that it was a complaint of that which is charged 
 against the prisoner, and can be legitimately used only for the 
 purpose of enabling the jury to judge for themselves whether the 
 conduct of the woman was consistent with her testimony on oath 
 given in the witness-box negativing her consent, and affirming
 
 2 37^ AMERICAN NOTES. 
 
 that the acts romplained of were against her will, and in accord- 
 ance with the conduct they would expect in a truthful woman 
 under the circumstances detailed by her' {H>iii. at p. 177). In 
 other words, tlic judgment decides that where a woman has made 
 a statement as to her own consent, which in the case before the 
 Court happened to be perfectly irrelevant, the details of her 
 complaint may be admitted only because they may serve as a 
 test of the credibility which ought to attach to the relevant parts 
 of her testimony." Stephen's Dig. Evid., Appendix, Note V. 
 
 Character of the Prosecutrix in Rape and Similar Offences. 
 
 " When a man is prosecuted for rape or an attempt to ravish, 
 it may be shown that the woman against whom the offence was 
 committed was of a generally immoral character, although she is 
 not cross-examined on the subject. The woman may in such a 
 case be asked whether she has had connection with other men, 
 but her answer cannot be contradicted. She may also be asked 
 whether she has had connection on other occasions with the 
 prisoner, and if she denies it she may be contradicted." Stephen's 
 Dig. Evid., Art. 134. 
 
 The character of the prosecutrix for chastity in rape cases is 
 relevant on the issue of consent to the act and is admissible in 
 evidence. This applies also to prosecutions for other similar 
 offences. People v. Johnson, 106 Cal. 289; Seals z;. State, 114 
 Ga. 518; Shirwin v. People, 69 111. 56; Anderson v. State, 104 
 Ind. 471 ; Com. v. Harris, 131 Mass. 336 ; O'Blemis v. State, 47 
 N. J. L. 279 ; Gore v. Curtis, 81 Me. 403 (solicitation to commit 
 adultery) ; Gross v. Brodrecht, 24 Oat. App. 687 (indecent 
 assault) ; Com. v. McDonald, no Mass. 405 ; Bedgood v. State, 
 1 15 Ind. 275. 
 
 It may be shown that the prosecutrix was a prostitute. Rice v. 
 State, 35 Fla. 236; People v. McLean, 71 Mich. 310; Woods v. 
 People, 55 N. Y. 515. 
 
 In actions for seduction, and the like, the woman's bad char- 
 acter as to chastity may be shown. Van Storch v. Griffin, 71 Pa. 
 240. 
 
 In action for seduction the good reputation of the girl in one 
 place may be proved to rebut evidence of her bad reputation 
 in another place. Milliken v. Long, 188 Pa. 411.
 
 AMERICAN NOTES. 237 U 
 
 Particular Acts of Unchastity. 
 
 On this subject there is a contlict. The following cases hold 
 that particular acts of unchastity with others cannot be proved. 
 Gore V. Curtes, 81 Me. 403; Com. v. Harris, 131 Mass. 336; 
 Com. V. Regan, 105 Mass. 593; People v. McLean, 71 Mich. 
 307 ; Shartzer v. State, 63 Md. 149 \ Rice v. State, 35 Fla. 236; 
 Richie v. State, 58 Ind. 355 ; contra. State v. Hollenbeck, 67 
 Vt. 34; Hoffman v. Kemerer, 44 Pa. St. 453; Doyle v. Jessup, 
 29 111. 460; Smith V. Yaryan, 69 Ind. 445 ; People v. Benson, 
 6 Cal. 221 ; State v. Forstner, 43 N. H. 89 ; State v. Knapp, 45 
 N. H. 148; People v. Abbot, 19 Wend. 194; R. v. Martin, 
 6 C. & P. 562. 
 
 When woman is under age of legal consent, such evidence in 
 rape cases has been held incompetent. People v. Johnson, to6 
 Cal. 289; People v. Abbott, 97 Mich. 484; State v. Duffey, 128 
 Mo. 549. 
 
 Explanations of Suspicions Circumstajices. 
 
 Where it was shown that several sizes of shot were found in the 
 body of the deceased and also in the defendant's gun, the defend- 
 ant was allowed to prove that the use of such shot in that 
 manner was common in the neighborhood. Cooper v- State, 
 23 Tex. 343. 
 
 The defendant is allowed to give in evidence other hypotheses 
 to explain incriminating circumstances. He may show a reason 
 for carrying a gun (People v. Malaspina, 57 Cal. 628) ; or the 
 reason for the possession of strychnine (People v. Cuff., 122 Cal. 
 589) ; or a reason for going to the locality of the crime. State v. 
 English, 67 Mo. 136. 
 
 In rebuttal of evidence of facts claimed to show motive or 
 state of mind, the accused may show what led up to those facts. 
 Rufer z;. State, 25 Ohio St. 464; Stater;. Spring, Tappan, 167. 
 
 The defendant in Granger v. State (Tex.), 31 S. W. 671, was 
 allowed to explain the fact that his gun had been recently fired, 
 by saying that he had shot a hawk, which he produced. He was 
 convicted, nevertheless. 
 
 Where the defendant, charged with forgery of a check, testifies 
 that he won it in a poker game, he may be asked, on cross- 
 examination, whether he told that story to the officers when "he
 
 21"] V AM KRICAN NOTES. 
 
 was first accused of the crime, and it may be shown that he did 
 not. People v. Dole, 122 Cal. 4S6, 68 Am. St. Rep. 50. 
 
 The defenilant may show that the reason he was encased in 
 steel armor and had four jiistols was that two organizations of 
 which deceased was a member had thrcatenetl defendant's life. 
 People V. Lee Chuck, 74 Cal. 30. 
 
 Where the State has given evidence that the defendant bought 
 a gun to kill the deceased, he may show that he had been threat- 
 ened and hence bought it to defend himself. State v. Doherty, 
 72 Vt. 381. 
 
 The defendant may show that in buying a gun he was prepar- 
 ing, not to make an attack, but to resist one. State v. Claire, 41 
 La. Ann. 191 ; Long v. State, 52 Miss. 23. 
 
 In a murder case, it is error not to allow the defendant to ex- 
 plain how he happened to have a pistol with him. Aaron v. 
 State, 31 Ga. 167. 
 
 The defendant charged with a homicide and shown to have had 
 blood stains on his face and shirt, may prove that the day before 
 the homicide occurred he asked a witness for his handkerchief 
 because he had the nosebleed. Murphy v. State, 36 Tex. Cr. Rep. 
 24, 35 S. W. 174. 
 
 Where one accused of arson had previously removed his own 
 goods from the house, it is error to exclude his explanation for 
 such removal. People v. Fournier (Cal.), 47 Pac. 1014. 
 
 Evading Arrest Explained. 
 
 The defendant may explain his evasion of arrest consistently 
 with his innocence. Li France v. State, 68 Ark. 529, 533, it is 
 said : "Now, the evidence in this case shows, we think, that this 
 defendant and those charged with him did not intend permanently 
 to avoid arrest. They stated that they endeavored to avoid arrest 
 at the time, for the reason that they could not give a bond, and 
 did not wish to lie in jail until they could have a trial, but in- 
 tended to surrender soon. The fact that they continued to remain 
 in the neighborhood of their homes until arrested, although they 
 could easily have left the State, seems to support this statement. 
 Although this endeavor to avoid arrest was a circumstance against 
 defendant calculated to arouse a suspicion that he was guilty, 
 yet, taken in connection with the explanation given for it, we
 
 AMERICAN NOTES. 237 zc; 
 
 think it hardly sufficient to justify the conviction, when standing 
 alone without other circumstance to connect defendant with 
 the crime." 
 
 Flight Explained. 
 
 In Tilley v. Com., 90 Va. 99, the defendant showed that he 
 fled the day after the murder because there was great excitement 
 at the inquest and he was in great danger of being lynched, that 
 after his arrest he was furnished with instruments with which to 
 escape, and that he turned them over to his attorney. 
 
 The accused may offer explanations of his flight or concealment 
 to rebut any inference therefrom that he is guilty. In Kennedy 
 V. Com., 14 Bush, 346, the accused gave the weak explanation that 
 he fled because the jail was filthy ; in Batten v. State, 80 Ind. 
 394, it was fear of violence. 
 
 The defendant may rebut the inference of guilt from his flight 
 by proving that he fled from fear of summary vengeance by the 
 father of the deceased. But a witness cannot testify that " the 
 defendant seemed afraid " of the said father, Lewis v. State, 96 
 Ala. 6, 10, 
 
 And he may explain his disappearance from the inquest to 
 which he was summoned. In Bailey v. State, 104 Ga. 530, the 
 Court says : " Doubtless he saw that he was suspected at the in- 
 quest, and seeing the relatives of the deceased armed, in a 
 moment of such excitement it is not strange, and is entirely con- 
 sistent with the theory of his innocence, that he should have en- 
 deavored to escape from such an atmosphere of danger." 
 
 Explanatlofis of Possession of Another's Property. 
 
 Defendant may explain the possession of money belonging to 
 another by evidence that he found it. White v. State, 28 Tex. 
 App. 71. 
 
 The defendant, in possession of animals belonging to another, 
 may explain by evidence that he took the property under the 
 belief that it was his. Evidence that a brand on the animal 
 looked like the brand of the defendant would be a corroborative 
 circumstance. So it may be shown that herds became mixed by 
 accident, or that bales belonging to defendant had been placed 
 near similar bales belonging to others, or that two animals looked 
 alike. Randlez;. State, 49 Ala. 14 (bales of cotton) ; Thurman v.
 
 21"] X AMERICAN NOTES. 
 
 State, 33 Tex. 684 (hog) ; Misscldine v. State, 21 Tex. App. 
 335 (strong resemblance between pigs) ; Minis v. State (Tex.), 
 32 S. W. 540 (cow mixed with a herd) ; liroolis v. State (Tex.), 
 27 S. W. 141 (brand W. B. looked like W. K.). 
 
 Where the defendant was charged with larceny of a steer, and 
 fresh meat was found in his possession, he may show that this 
 meat came from another steer of his own. But even so, tiie jury 
 need not be instructed to acquit, if they find such evidence of 
 the defendant to be true. State v. Minor (Iowa), 77 N. \V. 330. 
 
 Defendant, charged with the larceny of animals that he had 
 driven off and sold, may show that at once upon discovering the 
 fact he had sought the owner and offered or paid liim the value 
 of the animals (Hall v. State, 34 Ga. 20S) ; or that he returned 
 the property itself. Bennett v. State, 28 Tex. App. 342 ; Hicks 
 V. State (Tex.), 47 S. W. 1016. 
 
 One charged with larceny may prove that he himself put the offi- 
 cers on the track of the stolen goods. Pinkard v. State, 30 Ga. 757. 
 
 Defendant, accused of taking a package of tobacco, and hav- 
 ing been seen in possession of such a package, may explain where 
 he got it. State v. Brundidge, 118 Iowa, 92. 
 
 A defendant charged with the larceny of property may show 
 that he purchased it. The truth of his evidence is for the jury. 
 Smith V. State, 24 Tex. App. 290. The reasonableness of the 
 defendant's explanation is for the jury. State v. Mandich (Nev.), 
 54 Pac. 516. 
 
 In explaining the possession of recently stolen goods, the de- 
 fendant may prove what the person from whom he got them said 
 at the time. State v. Jordan, 69 Iowa, 506 ; Guajardo v. State, 
 24 Tex. Grim. 603. 
 
 The presumption of guilt arising from the possession of re- 
 cently stolen goods is wholly rebutted by showing that such pos- 
 session was obtained since the date of the stealing. State v. 
 Humason, 5 Wash. 499 ; Heed v. State, 25 Wis. 421. 
 
 If the prosecution relies on the fact of possession to prove lar- 
 ceny, the accused may offer in evidence any explanation given by 
 him at the time when he was first found with the property in his 
 possession. Goens v. State (Tex.), 31 S. W. 656. And the jury 
 should give such explanation as much weight as they deem it 
 entitled to in view of its inherent probability, and the failure of 
 the State to disapprove it where the means of doing so lie within 
 its power. Payne v. State, 57 Miss. 348.
 
 AMERICAN NOTES. 237^' 
 
 Explaining away Threats. 
 
 When it has been shown that the defendant had had an inten- 
 tion to commit a crime or had tlireatened to do so, he may show 
 the length of time since elapsed justifying an inference that the 
 intention had been abandoned and the circumstances under which 
 the threats were made. Atkins v. State, 16 Ark. 581. 
 
 To explain threats that he had made against the deceased, the 
 accused may prove that prior thereto the deceased hatl attacked 
 him with a hatchet. Boljer v. People, 129 111. 112. 
 
 The defendant may show that threats made by him were brag- 
 gadocio only, as by showing his threat to whip several men at 
 once. People v. Curtis, 52 Mich. 616. 
 
 Identity. 
 
 To rebut evidence of identity the accused may show that 
 another or others very closely resemble him. White v. Com., 80 
 Ky. 483. This sort of evidence was rejected when offered by 
 the State in Com. v. Webster, 5 Cush. 295. 
 
 In Grant v. State (Tex.), 58 S. W. 1025, the defendant es- 
 caped punishment, where his conviction rested upon tracking 
 him, by showing that others thereabouts had a wagon, a horse, 
 and a mule, and wore shoes similar to his. 
 
 Absence of Motive. 
 
 " The absence of evidence suggesting motive for the commis- 
 sion of the crime charged is a circumstance in favor of the ac- 
 cused, to be given such weight as the jury deems proper; but 
 proof of motive is never indispensable to conviction." Pointer v. 
 U. S., 151 U. S. 396. And see note to Chapter III. 
 
 Absence of motive to do the act charged may be proved by 
 the defendant, but it does not entitle him to an acquittal ; it is 
 merely a fact to be weighed by the jury. Salm v. State, 89 Ala. 
 56. 
 
 In Pogue V. State, 12 Tex. App. 283, the defendant, charged 
 with homicide, showed that he and the deceased were friends 
 and he had no motive to kill ; that his peculiar conduct after- 
 wards might fully be accounted for by the fact that he was drunk ; 
 that the defendant's clothes bore no blood stains, although the
 
 237 - AMERICAN NOTES. 
 
 killing was witii a knife and ihcrc wcif several wounds ; that the 
 defenilant did not leave the neighborhootl, but appeared surprised 
 when told of the deceased's death, and attemied the incjuest. 
 Although there were many circumstances indicating tlie defenil- 
 ant's guilt, it was held that they were not wholly inconsistent 
 with his innocence. 
 
 Innocent Motive. 
 
 Where the defendant, a saloon keeper, was charged with in- 
 juring a canal for the purpose of selling beer to the repairing 
 gang, and he is shown to have bought fifteen barrels of beer 
 before the offence was committed, he may show that he bought 
 an unusual amount of beer at that time to avoid payment of a 
 revenue tax about to be imposed. People v. Manahan, 70 N. Y. 
 Supp. loS. 
 
 Rebuttal of Motive. 
 
 Where robbery is the alleged motive for a homicide, the de- 
 fendant may show that the deceased was not reputed to have 
 money and actually had none. Lancaster v. State (Tex.), 31 
 S. W. 515. 
 
 Where the motive for a murder may have been robbery, certain 
 money in deceased's possession being gone, the defendant proved 
 that he had no need of money, and had ^300 at the time, the 
 amount possessed by the deceased being $30. Tilley v. Com., 90 
 Va. 99. 
 
 A defendant charged with robbery may not prove that he was 
 already possessed of property to negative the existence of a 
 motive. Reynolds z'. State (Ind.), 46 N. E. 31. 
 
 Defendant charged with wife murder may rebut evidence that 
 his relations with his wife were unfriendly by proof of affectionate 
 letters from her. Pettit v. State, 135 Ind. 393; State v. Leabo, 
 84 Mo. 168, 54 Am. Rep. 91. 
 
 The defendant cannot prove the fact that the deceased and he 
 were on friendly terms a year before the homicide. Com. v. 
 Twitchell (Pa.), i Brevvst. 551. 
 
 The defendant may not prove specific acts of kindness to the 
 person claimed to have been killed by him, where the State has 
 introduced no evidence of unkindness. Murphy v. People, 
 9 Colo. 435.
 
 AMERICAN NOTES. 237 a* 
 
 Voluntary Surrender. 
 
 In America the courts have very generally excluded evidence 
 on the part of the accused that he surrendered himself openly 
 and voluntarily. State v. Musick, loi Mo. 260; State v. 
 McLaughlin, 149 Mo. 19; Vaughn v. State, 130 Ala. 18; Oliver 
 V. State, 17 Ala. 587/ contra, Boston v- State, 94 Ga. 590; 
 White V. State, iii Ala. 92. 
 
 In Vaughn v. State, 130 Ala. 18, the defendant was not allowed 
 to prove that he refused to-flee and surrendered voluntarily, since 
 there was no evidence on the part of the State that he attempted 
 to get away. 
 
 "The district attorney objected to the question, and appel- 
 lant's counsel stated to the Court that he desired to show that 
 appellant, immediately after the shooting, went to Paso Robles 
 for the purpose of surrendering himself to the officers, but acting 
 Upon the advice of a Mr. Korn he returned home and waited for 
 the officers to come after him. The Court sustained the objec- 
 tion. This question might well have been allowed j and in many 
 cases the refusal to allow such questions would be material error. 
 But in the case at bar there was no evidence or pretence that 
 appellant attempted flight, therefore he could not have been 
 prejudiced by the rejection of the testimony." People v. Shaw, 
 III Cal. 171, 176. 
 
 That the accused voluntarily appeared to answer the charge may 
 be shown. State v. Gardner, Tappan (Ohio), 124. 
 
 Refusal to Escape. 
 
 It has many times been held in the United States that the de- 
 fendant cannot prove that he refused to escape when he had an 
 opportunity to do so. People v. Rathburn, 21 Wend. 509 ; Com. 
 V. Hersey, 2 Allen, 173; People v. Montgomery, 53 Cal. 576; 
 Jordan v. State, 81 Ala. 20 ; Kennedy v. State, loi Ga. 559. 
 
 Such evidence was admitted in Lewis v. State, 4 Kan. 309. 
 
 Conduct In die at mg Consciousness of Innocence. 
 
 Courts very generally refuse to allow proof of defendant's con- 
 duct to show his consciousness of innocence, though it would 
 seem to be equally relevant with conduct to show consciousness
 
 237 b* AMERICAN NOTES. 
 
 of guilt. Campbell v. State, 23 Ala. 44 ; State v. Strong, 153 
 Mo. 54S. 
 
 To show innocence one cannot show that on other occasions 
 he had opportunities to violate the law but did not do so. 
 Arclier 7'. State, 45 Md. 33. 
 
 In Pinkard v. State, 30 Ga. 759, the defendant was allowed to 
 show he put the ofificers on the track of the real criminal. 
 
 Previous Bad Character. 
 
 The previous bad character of the accused is certainly evidence 
 relevant to show the probability of his having committed a crime. 
 It could well be termed an "inculpatory moral indication, but 
 it is not admitted," for reasons of policy and humanity. 
 
 The State may attack the character of an accused only when 
 he introduces evidence that it is good, and even then the State 
 may not prove any specific fa>cts, but is restricted to evidence as 
 to general reputation. Bullock v. State, 65 N. J. L. 557. 
 
 But evidence of the defendant's bad character may be given 
 when the defendant has offered evidence of his good character. 
 This is admitted probably not so much for the purpose of prov- 
 ing the defendant's guilt, as to impose a necessary check upon 
 his introducing false evidence of good character. Reg. v. Row- 
 ton, Leigh & C, 520; Com. v. Hardy, 2 Mass. 317; U. S. z'. 
 Holmes, 15 Fed. 382. 
 
 The previous bad character of the accused, though equally 
 relevant with his previous good character, is not admissible 
 against him. The reason is given in Regina v. Rowton, Leigh & 
 C. 520, as follows : . . . "if the prosecution were allowed to go into 
 such evidence, we should have the whole life of the prisoner 
 ripped up, and, as has been witnessed elsewhere, upon a trial for 
 murder you might begin by showing that when a boy at school 
 the prisoner had robbed an orchard, and so on through the whole 
 of his life ; and the result would be that the man on his trial might 
 be overwhelmed with prejudice, instead of being convicted by 
 that affirmative evidence which the law of this country requires. 
 The evidence is relevant to the issue, but is excluded for reasons 
 of policy and humanity; because although by admitting it you 
 might arrive at justice in one case out of a hundred, you would 
 probably do injustice to the other ninety-nine."
 
 AMERICAN NOTES. 237 ^r* 
 
 See also State v. Lapage, 57 N. H. 289; People v. Shay, 147 
 N. Y. 78; State v. Kabrich, 39 Iowa, 277; Com. v. Webster, 
 5 Cush. 295 ; State v. Beaty, 62 Kan. 266. 
 
 Weight of Character as Evidence. 
 
 The Court should not charge that evidence of good character 
 is entitled to less weight in serious than in minor crimes, Har- 
 rington V. State, 19 Ohio St. 264. 
 
 Proof of good character may be sufficient to rebut wholly any 
 presumption of guilt where the defendant has been found in pos- 
 session of stolen goods, particularly where his possession can be 
 accounted for in a way consistent with innocence, as where a 
 purse stolen in a crowd is found in a reputable man's coat-pocket. 
 Ingalls V. State, 48 Wis. 647 ; State v. Castra, 93 Mo. 242 ; 
 Hughes V. State, 8 Humph. (Tenn.) 75. 
 
 " Against facts strongly proved good character cannot avail. 
 It is therefore in smaller offences in such as relate to the actions 
 of daily and common life, as when one is charged with pilfering 
 and stealing that evidence of a high character for honesty will 
 satisfy a jury that the accused is not likely to yield to so slight 
 a temptation. In such case, where the evidence is doubtful, 
 proof of character may be given with good effect. 
 
 " But still, even with regard to the higher crimes, testimony of 
 good character, though of less avail, is competent evidence to the 
 jury and a species of evidence which the accused has a right to 
 offer. But it behooves one charged with an atrocious crime like 
 this of murder to prove a high character, and, by strong evidence, 
 to make it counterbalance a strong amount of proof on the part 
 of the prosecution. It is the privilege of the accused to put his 
 character in issue or not. If he does and offers evidence of good 
 character, then the prosecution may give evidence to rebut and 
 counteract it. But it is not competent for the government to 
 give in proof the bad character of the defendant, unless he first 
 opens that line of inquiry by evidence of good character." 
 Com. V. Webster, 5 Cush. 295, 325. 
 
 Alibi as Evidence. 
 
 Of the nature of an alibi Chief Justice Shaw in Com. v. Webster, 
 5 Cush. 295, 318, says : *• When a fact has occurred, with a series
 
 2iy d* AMERICAN NOTES. 
 
 of circumstances preceding, accompanying, and following it, we 
 know that these must all have been once consistent with each 
 other; otherwise the fact would not have been possible. There- 
 fore, if any one fact necessary to the conclusion is wholly incon- 
 sistent with the hypothesis of the guilt of the accused, it breaks 
 the chain of circumstantial evidence, upon which the inference 
 depends; and, however plausible or apparently conclusive the 
 other circumstances may be, the charge must fail. Of this 
 character is the defence usually called an a/il>i ; that is, that the 
 accused was ehmvhere at the lime the offence is alleged to have 
 been committed. If this is true, — it being impossible that the 
 accused should be in two places at the same time, — it is a fact 
 inconsistent with that sought to be proved, and excludes its 
 possibility." 
 
 Somewhat similar to the defence of alibi is the defence in 
 homicide cases that the supposed deceased is still alive or that 
 he was alive since the time this defendant is accused of killing 
 him. See Com. v. Webster, 5 Cush. 295, where the defendant 
 tried to show that the deceased. Dr. Parkman, was seen about 
 Boston at a time later than the time of the alleged murder. 
 
 Alibi — Weight of Evidence. 
 
 A verdict will not be set aside merely because the witnesses 
 testifying to an alibi are unimpeached where the defendant 
 was clearly identified as guilty of the crime charged. State 
 V. White (Iowa), 68 N. W. 564; State v. Stanley, 109 Iowa, 
 142. 
 
 An alibi is of no value as a defence unless it covers all the 
 time within which the crime may have been committed. Brice- 
 land V. Com., 74 Pa. 463. 
 
 But it is sufficient if the defendant is shown to have been 
 at a distant place during even a small portion of the time in ques- 
 tion, wliere it would have been impossible for him to have reached 
 the scene of the crime in the remainder of the time during 
 which he was not accounted for. Waters v. People, 172 111 367 ; 
 Henry v. State (Neb.), 70 N. W. 924 ; Miller v. Terr., 3 Wash. T. 
 554, 19 P^c. 50. 
 
 An alibi is not established by proof that the defendant one 
 hour after a certain offence w^s in another town fifteen miles away
 
 AMERICAN NOTES. 237 e* 
 
 and connected by rail with the place of the crime. Donaho v. 
 State (Tex.), 47 S. W. 469. 
 
 Where the testimony against the defendant consisted wholly of 
 the evidence of three accomplices already convicted, who were 
 discredited by previous inconsistent statements and by proof that 
 they were implicating the defendant in hope of a pardon for 
 themselves, it was held that a conviction should not be sustained 
 in the face of the testimony of three relatives and three others 
 that the defendant was in their company during three hours of 
 the time the witnesses claimed he was with them, and the testi- 
 mony of a half brother, that the defendant slept with him during 
 the same night. Waters v. People, 172 111. 367. 
 
 In Miller v. Terr., 3 Wash. T. 554, 19 Pac. 50, two persons 
 were killed and robbed and their bodies sunk in a lake. The 
 defendant had a slight motive to do away with one of them, 
 he had a gun with which the wounds might have been given, and 
 a boat like his had been seen going from the place of the crime 
 toward his home. He behaved afterwards in a manner indicating 
 consciousness of guilt. But it was shown that the gunshots had 
 been heard about 7 a.m., that the defendant had not left home 
 until 8 A.M., that he had arrived in Seattle at 10 a.m., and that 
 had he been on the scene of the crime he could not have reached 
 Seattle before i p.m. None of the stolen property was traced to 
 the defendant. A conviction was set aside. 
 
 The defendant charged with arson in the nighttime may show 
 that he was in his home and could not have left it without arous- 
 ing the other inmates. State v. Delaney, 92 Iowa, 467. 
 
 Where the defendant alleges he was in a certain house at the 
 time of the crime charged, he may show in outline the conversa- 
 tions at that time between him and the other individuals there. 
 State V. Bedard, 65 Vt. 278. 
 
 Alibi — Sufficient if Creating a Reasonable Doubt. 
 
 It is generally held sufficient for the evidence of an alibi to 
 raise a reasonable doubt as to the defendant's guilt ; he need not 
 establish it by a preponderance of the evidence. Blankenship v. 
 State, 55 Ark. 244; Beck v. State (Neb.), 70 N. W. 498; Pickens 
 V. State (Ala.), 22 So. 551. 
 
 If the evidence of an alibi taken in connection with the other
 
 211 f* AMERICAN NOTES. 
 
 testimony creates a reasonable doubt of guilt, the defendant 
 should be acquitted. Sheehan v. People, 131 111. 22 ; Harrison v. 
 State, 83 Ga. 129; Pate v. State, 94 Ala. 14; State v. Jaynes, 
 78 N. C. 504. 
 
 Where the defendant relies upon an alibi alone, it must be 
 established by a preponderance of the evidence, as against the 
 evidence that he was near the scene of the crime ; but evidence 
 of an alibi not amounting to a preponderance may be taken in 
 connection with other testimony to establish a reasonable doubt 
 as to defendant's guilt. Lucas v. State, no Ga. 756. 
 
 Alibi — Rebuttal. 
 
 The accused testified that he was in a certain city at the time 
 of the crime and saw there a procession. His description of that 
 procession may be shown to be inaccurate. People v. Gibson, 
 58 Mich. 368. 
 
 Where a defendant claimed to have attended a certain circus 
 at the time of the crime, and returned on a certain train, a 
 neighbor was allowed to testify that he did not see the de- 
 fendant either at the circus or on the train. State v. Phair, 
 48 Vt. 366. 
 
 In People v. Durrant, 116 Cal. 179, where the defendant 
 was charged with the murder of a young lady in a church at 
 3 P.M., he alleged at once, and firmly adhered to his statement, 
 that he attended at that hour a lecture at the Medical College 
 where he was a student, and in corroboration of his statement he 
 produced what purported to be his original notes of the lecture 
 taken at the time. But the State showed that he had pro- 
 cured these very notes from a fellow student and friend after 
 his arrest. 
 
 The State may rebut evidence in an alibi, even though it did 
 not in chief introduce any testimony directly contradictory to such 
 subsequently proved alibi. State v. Maher, 74 Iowa, 77. 
 
 Where the defendant was many miles away from the scene of 
 the crime when arrested, and could not have reached the spot 
 since the crime by the roundabout roads, it may be shown that 
 the intervening fences were of wire and the defendant had a wire 
 cutter. Goldsby v. U. S., 160 U. S. 70.
 
 AMERICAN NOTES. 237 
 
 Truth. 
 
 The accused, in order to meet evidence that he gave a false 
 account of himself, cannot show that on other occasions he gave 
 a true account. Com. v. Goodwin, 14 Gray (Mass.), 55. 
 
 Fabrication by Others. 
 
 Where the only evidence against the defendant was given 
 by a witness who before the trial told various parties that he 
 knew nothing whatever against the defendant, a conviction was 
 set aside. Adams v. State, 10 Tex. App. 677. 
 
 Character of the Defefidant. 
 
 " In criminal proceedings, the fact that the person accused has 
 a good character is deemed to be relevant ; but the fact that he 
 has a bad character is deemed to be irrelevant, unless it is itself 
 a fact in issue, or unless evidence has been given that he has a 
 good character, in which case evidence that he has a bad charac- 
 ter is admissible." Stephen's Dig. Evid., Art. 56. 
 
 Evidence of good character. — Com. v. Gazzolo, 123 Mass. 
 220; Edgington v. U.S., 164 U. S. 361 3 Com. v. Cleary, 135 
 Pa. St. 64; Jackson v. State, 81 Wis. 127; People v. Harrison, 
 93 Mich. 594; State v. Howell, 100 Mo. 628 ; State ?'. Rodman, 
 62 Iowa, 456. 
 
 Evidence of bad character. — State v. Lapage, 57 N. H. 245, 
 24 Am. Rep. 69; State v. Ellwood, 17 R. I. 763, 24 Atl. 782; 
 State v. Hull, 18 R. I. 207, 26 Atl. 191, 20 L. R. A. 609 ; People 
 V. Fair, 43 Cal. 137 ; Com. z/. Sacket, 22 Pick. (Mass.) 394 ; Com. 
 V. Hardy, 2 Mass. 303, 317; Com. v. O'Brien, 119 Mass. 345. 
 
 That a defendant's character is relevant and actually tends to 
 show the probability of the act of which he is accused cannot be 
 doubted. R. v. Stannard, 7 C. & P. 674; R. v. Rowton, Leigh 
 &: C. 520; Cancemi v. People, 16 N. Y. 506; State v. Lee, 22 
 Minn. 409. 
 
 Evidence of the good character of the defendant is admissible 
 in his favor in all criminal prosecutions. People v. Stewart, 28 
 Cal. 395 ; People v. VanDam, 107 Mich. 425 ; State v. Northrup, 
 48 Iowa, 584 ; Com. v. Webster, 5 Cush. 295 ; State v. Hice, 117 
 N. C. 782.
 
 21"] h* AMERICAN NOTES. 
 
 The character must he as to points which would tend to show 
 that it was unlikely that the defendant committed the crime in 
 question. Com. v. Nagle, 157 Mass. 554; Griffin v. State, 14 
 Ohio St. 55. 
 
 The character which may be proved is not the character in 
 general of the accused, but those specific traits of his character 
 that would have a bearing upon the commission of the particular 
 crime. Morgan v. State, 88 Ala. 224 ; Kee v. State, 28 Ark. 
 155 ; People v. Fair, 43 Cal. 137 ; People v. Chrisman, 135 Cal. 
 282 ; State v. Bloom, 68 Ind. 54. 
 
 Defendant's reputation as a good soldier is not relevant in a 
 prosecution for murder. People v. Garbutt, 17 Mich. 9. 
 
 One accused of murder may prove his reputation for peace 
 and quietude. House v. State (Tex.), 57 S. W. 825. 
 
 In a prosecution for having carnal knowledge of a woman 
 under the age of consent, the defendant may \)\ovq his "reputa- 
 tion for morality, virtue, and honesty in living." State v. Snover, 
 63 N. J. L. 383. 
 
 In bastardy proceeding the accused may prove his previous 
 good character for morality. Hawkins v. State, i Zab. 630 ; 
 Dally V. Woodbridge, i Zab. 491. 
 
 In a prosecution for adultery, evidence of the good character 
 for chastity of the woman with whom the adultery was alleged to 
 have been committed is admissible. Com. v. Gray, 1 29 Mass. 
 
 474- 
 
 General Reputation, ?wt Particular Acts. 
 
 Testimony as to the defendant's good character must be con- 
 fined to general reputation and cannot include specific acts. State 
 V. Lapage, 57 N. H. 245, 24 Am. Rep. 69 ; Com. v. O'Brien, 
 119 Mass. 342, 345, 20 Am. Rep. 325; Com. v. Harris, 131 
 Mass. 336. Compare Com. v. Robinson, Thacher Cr. Cas. 230 ; 
 Snyder v. Com., 85 Pa. St. 519; McQueen v. State, 108 Ala. 
 54 ; Berneker v. State, 40 Neb. 810 ; Betts v. Lockwood, 8 Conn. 
 488, 489; State V. Ferguson, 71 Conn. 227. 
 
 Reputation., 7iot Disposition. 
 
 " Assuming, then, that evidence was receivable to rebut the 
 evidence of good character, the second question is. Was the an- 
 swer which was given in this case, in reply to a perfectly legiti-
 
 AMERICAN NOTES. 237 Z * 
 
 mate question, such an answer as could properly be left to 
 the jury? {Q. 'What is the defendant's general character for 
 decency and morality of conduct?' Ans. 'I know nothing of 
 the neighborhootl's opinion, because I was only a boy at school 
 when I knew him ; but my own opinion, and the opinion of my 
 brothers who were also pupils of his, is that his character is that 
 of a man capable of the grossest indecency and the most flagrant 
 immorality.' The defendant was charged with indecent assault 
 upon a boy.) Now, in determining this point, it is necessary to 
 consider what is the meaning of character. Does it mean evi- 
 dence of general reputation or evidence of disposition ? I am 
 of opinion that it means evidence of general reputation. What 
 you want to get at is the tendency and disposition of the man's 
 mind towards committing or abstaining from committing the class 
 of crime with which he stands charged ; but no one has ever 
 heard the question, What is the tendency and disposition of the 
 prisoner's mind? put directly." R. v. Rowton, i L. & C. 520. 
 See criticism of this case below. 
 
 " The subject character is considered at length in R. v. Rowton, 
 1865, I L. & C. 520. One consequence of the view of the sub- 
 ject taken in that case is that a witness may with perfect truth 
 swear that a man, who to his knowledge has been a receiver of 
 stolen goods for years, has an excellent character for honesty, if 
 he has had the good luck to conceal his crimes from his neigh- 
 bors. It is the essence of successful hypocrisy to combine a 
 good reputation with a bad disposition, and according to R. v. 
 Rowton, the reputation is the important matter. The case is 
 seldom if ever acted on in practice. The question always put to 
 a witness to character is, What is the prisoner's character for 
 honesty, morality, or humanity? as the case may be; nor is the 
 witness ever warned that he is to confine his evidence to the pris- 
 oner's reputation. It would be no easy matter to make the com- 
 mon run of witnesses understand the distinction." Stephen's 
 Dig. Evid., Appendix, note xxv. 
 
 Although it has often been said that the term " Character " in- 
 cludes both one's real disposition and his reputation for having 
 such disposition (see Powers v. Leach, 26 Vt. 278), yet in so far 
 as it is to be used as an evidentiary fact to establish the doing or 
 the not doing of an act, it means the real disposition only. Rep- 
 utation is only a fact from which one's real character is to be
 
 2377* AMERICAN NOTES. 
 
 inferred, and from his real character is to be inferred the proba- 
 bihty of his having acted in a certain manner. 
 
 The rule that one's character must be established by proof of 
 his reputation merely is based upon the idea, not that they are 
 the same thing, but that this mode of proof is less objectionable 
 than that which depends upon the inilividual opinion of witnesses. 
 Bottoms 7'. Kent, 3 Jones L. 160; State v. Lee, 22 Minn. 409.
 
 CHAPTER VI. 
 
 RULES OF INDUCTION SPECIALLY APPLICABLK TO 
 CIRCUMSTANTIAL EVIDENCE. 
 
 All reasoning- concerning human conduct is 
 essentially a process of induction, of which it is the 
 object, by means of i^cneralizations founded upon a 
 knowledge of the faculties, emotions, and laws of the 
 mind, to discover the moral qualities and causal origin 
 of the voluntary actions of our fellow-men ; whence it 
 follows that the rules for the conduct of inductive in- 
 quiry belong formally to the province of Logic, or the 
 science of the laws of thought. The rules of evidence 
 are therefore a selection of maxims tacitly assumed 
 and acted upon by all men in the ordinary affairs of life, 
 and recognized by philosophical wisdom and judicial 
 experience as the best means of discovering truth. 
 The purpose of this essay requires the enumeration 
 only of such few leading rules of evidence as are of 
 special, though not of exclusive application, to the 
 particular subject-matter of this treatise. 
 
 Rule i. — The facts alleged as the basis of any 
 leo^al inference must be clearly proved, and beyond 
 reasonable doubt connected with the factnni prcbandum. 
 This rule is an indispensable condition of all sound 
 induction ; and its object is, by proper rejections and 
 exclusions, and after as many negations as are 
 necessary (^), to verify facts and clear them from all 
 
 {a) Bacon, Novum Organum, Lib. i., Aph. cv. ; Mill's Logic, Book V., 
 chs. 2 and 3.
 
 RULES OF EVIDENCE. 239 
 
 ambig-uity, so that they may become the premises 
 of logical argument and reasoning'. In moral 
 investigations the facts are generally more obscurely 
 developed than when physical phenomena form the 
 subjects of inquiry ; and they are frequently blended 
 with foreign and Irrelevant circumstances, so that 
 the establishment of their connection with xho. factzcm 
 probanduni becomes matter of considerable difficulty. 
 No weight therefore must be attached to circum- 
 stances which, however they may excite conjecture, 
 do not warrant belief. Occurrences may be 
 mysterious and justify even vehement suspicion, and 
 yet the supposed connection between ehem may be 
 but imaginary, and their co-existence Indicative of 
 accidental concurrence merely, and not of mutual 
 correlation. ** Where there is nothing but the 
 evidence of circumstances to guide you," said Mr. 
 justice Bailey, "those circumstances ought to be 
 closely and necessarily connected, and to be made as 
 clear as If there were absolute and positive proof" {h). 
 Every circumstance therefore which is not clearly 
 shown to be really connected as its correlative with 
 the hypothesis it is supposed to support, must be 
 rejected from the judicial balance ; in other words, 
 It must be distinctly established that there exists 
 between the. facluju proda7idnin and the facts which 
 are adduced in proof of it, a real connection, either 
 evident and necessary, or so highly probable as to 
 admit of no other reasonable explanation {c). 
 
 {b) Rexw. Downing, Salop Summer Ass. 1822, the next case infra. 
 Epithets require to be watched: "absolute or positive proof" can 
 mean only proof such as reasonably induces the conviction of 
 certainty. See p. 262, inff-a. 
 
 {c) Traite de la Preuve, par Alittermaier, ch. 55 and 57,
 
 240 RULES OF EVIDENCE. 
 
 The followincr cases will serve to manifest the 
 dangerous consequences which may ensue from the 
 disregard of this most salutary cautionary rule. 
 
 Two brothers-in-law, Joseph Downing and Samuel 
 Whitehouse, met by appointment to shoot, and 
 afterwards to look at an estate, which on the death 
 of Whitehouse's wife without issue would devolve 
 on Downing. They arrived at the place of meeting 
 on horseback, Dov/ning carrying a gun-barrel and 
 leading a colt. After the business of the day, and 
 after drinking together some hours, they set out to 
 return home, Downing leading his colt as in the 
 morning. Their way led through a gate opening 
 from the turnpike road, and thence by a narrow 
 track through a wood. On arriving at the gate, 
 Downincj discovered that he had iorootten his <jun- 
 barrel ; and a man v.'ho accompanied them to open 
 the gate went back for it, returning in about three 
 minutes. In the meantime Whitehouse had gone 
 on in advance ; and the prisoner, having received 
 his gun-barrel, followed in the same direction. 
 Shortly afterwards Whitehouse was found lying on 
 the ground in the wood, at a part where the track 
 widened, about 600 yards from the gate, with his 
 hat off, and insensible from several wounds in the 
 head, one of which had fractured his skull. While 
 the person by whom he was discovered went for 
 assistance, the deceased had been turned over and 
 robbed of his watch and money. About the same 
 time Downing was seen in advance of the spot where 
 the deceased lay, proceeding homeward and leading 
 his colt ; and a few minutes aftervv'ards tv/o men
 
 RULES OF EVIDENCE. 24 1 
 
 were seen following" in the same direction. Sus 
 picion attached to Downing, partly from his interest 
 in the estate enjoyed by the deceased, and he was 
 put upon his trial for this sup;joied murder; but it 
 was clear that he had no motive on that account to 
 kill the deceased, as the estate was not to come to 
 him until after failure of issue of the deceased's 
 wife, to whom he had been married several years, 
 without having had children ; so that it was his 
 interest that the way should not be opened to a 
 second marriage. That the deceased had been 
 murdered at all, was a highly improbable conjecture, 
 and it was far more probable that he had fallen from 
 his horse and received a kick, especially as his hat 
 bore no marks of injury, so that it had probably 
 fallen off before the infliction of the wounds. That 
 the deceased, if murdered at all, had been murdered 
 by the prisoner was in the highest degree im- 
 probable, considering how both his hands must 
 have been employed, nor was there any evidence 
 that the deceased had been robbed by the prisoner. 
 It thus appeared, that these accumulated circum- 
 stances, of supposed inculpatory presumption, were 
 really irrelevant and unconnected with any corpus 
 delicti (e). The prisoner was acquitted ; and it is 
 instructive that about twelve months afterwards, 
 the mystery of the robbery, the only real circum- 
 stance of suspicion, was cleared up. A man was 
 apprehended upon offering the deceased's watch for 
 sale, and brought to trial for the theft of it, and 
 acquitted, the judge thinking that he ought not to 
 be called upon, at so distant a period, to account for 
 
 U) Rex V. Dozuni/rg^ Salop Sum. Ass. 1822, coram Bayley, J. 
 C.E. R
 
 2^2 RULES OF EVIDKNCE. 
 
 the possession of the deceased's property, which he 
 might have purchased, or otherwise fairly acquired, 
 without being aljle to pnne it by evidence. The 
 accused, when no longer in danger, acknowledged 
 that he had robbed the deceased, whom he found 
 lying drunk on the road, as he believed ; but that 
 he had concealed the watch, on learning that it was 
 supposed that he had been murdered, in order to 
 prevent suspicion from attaching to himself, 
 
 A farmer was tried under the special commission 
 for Wiltshire, in January 1831, upon an indictment 
 which charged him with having feloniously sent a 
 threatening letter, which was alleged to have been 
 written by him. That the letter was in the prisoner's 
 handwriting was positively sworn by witnesses 
 who had had ample means of becoming acquainted 
 with it, while the contrary was as positively asserted 
 on the part of the prisoner by numerous witnesses 
 equally competent to speak to the fact. But the 
 scale appears to have been turned by the circum- 
 stance that the letter in question, and two others of 
 the same kind sent to other persons, together with 
 a scrap ot paper found in the prisoner's bureau, had 
 formed one sheet of paper ; the ragged edges of the 
 different portions exactly fitting each other, and the 
 water-mark name of the maker, which was divided 
 into three parts, being perfect when the portions of 
 paper were united. The jury found the prisoner 
 guilty, and he was sentenced to be transported for 
 life. The judge and jury having retired for a few 
 minutes, during their absence the prisoner's son, 
 a youth about eighteen years of age, was brought
 
 RULES OF EVIDENCE. 243 
 
 to the table by the prisoner's attorney, and confessed 
 that he had been the writer of the letter in question, 
 and not his father. He then wrote on a piece of 
 paper from memory a copy of the contents of the 
 anonymous letter, which on comparison left no doubt 
 of the truth of his statement. The writinof was not a 
 verbatim copy, although it differed but little ; and 
 the bad spelling of the original was repeated in the 
 copy. The original was then handed to him, and on 
 being desired to do so, he copied it, and the writing 
 was exactly alike. Upon the return of the learned 
 judge the circumstances were mentioned to him, 
 and he had the prisoner tried upon a second indict- 
 ment for sending a similar letter, when the son 
 admitted in the witness box writino" and sendine all 
 the three letters in question, and the father was at 
 once acquitted. The son was subsequently indicted 
 for the identical offence which had been imputed to 
 the father : he pleaded guilty, and was sentenced 
 to transportation for seven years. It appeared that 
 he had had access to the bureau, which was commonly 
 left open. The writing of the letter constituted in 
 fact the corpus delicti ; there having been no other 
 evidence to inculpate the prisoner as the sender of 
 the letter, which would however have been the 
 natural and irresistible inference if he had been 
 the writer. The correspondence of the fragment 
 of paper found in the prisoner's bureau with the 
 letter in question, and with the two others of the 
 same nature sent to other persons, was simply a 
 circumstance of suspicion, but foreign, as it turned 
 out, to the factum in question ; and considering 
 that other persons had access to the bureau, its 
 
 R 2
 
 244 RULES OF EVIDENCE. 
 
 weight as a circumstance of suspicion seems to have 
 been overrated {/). 
 
 But, perhaps, the most extraordinary and instruc- 
 tive case of this kind that has ever occurred was 
 that of Abraham Thornton, who was tried at the 
 Warwick Autumn Assizes, 1817, before Mr. Justice 
 Holroyd, for the alleged murder of a younjj;' woman, 
 who was found dead in a pit of water about seven 
 o'clock in the morning, with marks of violence about 
 her person and dress, from which it was supposed 
 that she had been violated, and afterwards drowned. 
 The deceased's bonnet and shoes and a bundle 
 were found on the bank of the pit. Upon the 
 grass, at a distance of forty yards, there was the 
 impression of an extended human figure, and a 
 large quantity of blood was upon the ground near 
 the lower extremity of the figure, where there were 
 also the marks of large shoe-toes. Spots of blood 
 were traced for ten yards in a direction leading 
 from the impression to the pit, upon a footpath, and 
 about a foot and a half from the path upon the 
 grass on one side of it. When the body was 
 found, there was no trace of any footstep on the 
 grass, which was covered with dew not otherwise 
 disturbed than by the blood ; from which circum- 
 stances it was insisted that the spots of blood must 
 have fallen from the body while being carried in 
 some person's arms. Upon the examination of the 
 body, about half a pint of water and some duckweed 
 were found in the stomach, so that the deceased 
 
 {f) Rexv. Isaac Looker, Rex v. E (heard Looker, Ann. Reg. 1831 
 (Chr.) p. 9 ; and see Selections from the charges of Mr. Baron Alderson
 
 RULES OF EVIDENCE. 245 
 
 must have been alive when immersed in the water. 
 There were lacerations about the parts of generation, 
 but nothing which miHit not have been caused bv 
 sexual intercourse with consent. Soon after the 
 discovery of the body, there were found in a newly 
 harrowed field adjoining that in which the pit was 
 situate, the recent marks of the right and left foot- 
 steps of the prisoner and also of the footsteps of the 
 deceased, which, from the length and depth of the 
 steps, indicated that there had been running and 
 pursuit, and that the deceased had been overtaken. 
 From that part of the harrowed field where 
 the deceased had been overtaken, her footsteps 
 and those of the prisoner proceeded together, 
 walking in a direction towards the pit and the spot 
 where the impression was found, until the footsteps 
 came within the distance of forty yards from the 
 pit, when from the hardness of the ground they 
 could be no lon^jer traced. The marks of the 
 prisoner's running footsteps were also discovered in 
 a direction leading from the pit across the harrowed 
 field ; from which it was contended that he had run 
 alone in that direction after the commission of the 
 supposed murder. The mark of a man's left shoe 
 (but not proved to have been the prisoner's) was 
 discovered near the edge of the pit, and it was 
 proved that the prisoner had worn right and left 
 shoes. On the prisoner's shirt and breeches were 
 found stains of blood, and he acknowledged that he 
 had had sexual intercourse with the deceased, but 
 alleged that it had taken place with her own consent. 
 The defence set up was an alibi, which, notwith- 
 standing these apparently decisive facts, was most
 
 246 RULES OF EVIDENCE. 
 
 satisfactorily established. The prisoner and the 
 deceased had met at a dance on the preceding evening 
 at a public-house, which they left together ab(jut mid- 
 night. About three in the morning they were seen 
 talking together at a stile near the spot, and about 
 four o'clock the deceased called at the house of 
 Mrs, Butler, at Erdington, where she had left a 
 bundle of clothes the day before. Here she ap- 
 peared in good health and spirits, changed a part of 
 her dress for some of the garments which she had 
 left there, and quitted the house in about a quarter 
 of an hour. Her way home lay across certain fields, 
 one of which had been newly harrowed, and adjoined 
 that in which the pit was situate. The deceased was 
 successively seen after leaving Mrs. Butler's house 
 by several persons, proceeding alone in a direction 
 towards her own home, along a public road where 
 the prisoner, if he had rejoined her, could have 
 been seen for a considerable distance ; the last 
 of such persons saw her within a quarter of an hour 
 afterwards, that is to say, before or about half- 
 past four. At about half-past four, and not later 
 than twenty-five minutes before five, the accused was 
 seen by four persons, wholly unacquainted w^ith him, 
 walking slowly and leisurely along a lane leading 
 in an opposite direction from the young woman's 
 course towards her home. About a mile from the 
 spot where the prisoner was seen, he was seen by 
 another witness about ten minutes before five, still 
 walking slowly in the same direction, with whom he 
 stopped and conversed for a quarter of an hour, after 
 which, at twenty-five minutes past five, he was 
 again seen walking towards his father's house,
 
 RULES OF EVIDENCE. 247 
 
 which was distant about half a mile. From Mrs. 
 Butler's house to the pit was a distance of upwards 
 of a mile and a quarter ; and allowing twenty 
 minutes to enable the deceased to walk this distance, 
 would bring the time of her arrival at the pit 
 to twenty-five minutes before five ; whereas the 
 prisoner was first seen by four persons above all 
 suspicion at half-past four or twenty-five minutes 
 before five, and the distance of the pit from the 
 place where he was seen, was two miles and a 
 half. 
 
 Upon the hypothesis of his guilt, the prisoner 
 must have rejoined the deceased after she left Mrs. 
 Butler's house, and a distance of upwards of three 
 miles and a quarter must have been traversed by 
 him, accompanied for a portion of it by the dt-ceased, 
 and the pursuit, the criminal intercourse, the drown- 
 ing, and the deliberate placing of the deceased's 
 bonnet, shoes, and bundle, must have taken place 
 within twenty or twenty five minutes. The defence 
 was set up at the instant of the prisoner's apprehen- 
 sion, which took place within a few hours after the 
 discovery of the body, and was maintained without 
 contradiction or variation before the coroner's in- 
 quest and the committing magistrates, and also 
 upon the trial, and no inroad was made on the 
 credibility of the testimony by which it was sup- 
 ported. The various timepieces to which the wit- 
 nesses referred, and which differed much from each 
 other, were carefully compared on the day after the 
 occurrence and reduced to a common standard, so 
 that there could be no doubt of the real times as 
 spoken to by them. Thus, it was not within the
 
 248 RULES OF EVIDENCE. 
 
 bounds of posslhility lliat the prisoner could hnve 
 commillcd the crime; imputed to him ; nevertheless, 
 public indignation was so stronj^ly excited that 
 his acquittal, though it afforded a fine examjile 
 of the calm and unimpassioned administration of 
 justice, occasioned great public dissatisfaction. 
 
 There was nevertheless a total absence of all 
 conclusive evidence of a corpus delicti, which the 
 jury were required to infer from circumstances of 
 apparent suspicion. The deceased might have 
 drowned herself, in a moment of remorse, after 
 parting from her seducer, terrified beyond control by 
 the presence in the light of day of so many visible 
 marks of her downfall. It was possible that she 
 might have sat down to change her dancing shoes 
 for the boots which she had worn the preceding 
 day and carried in her bundle, and fallen into the 
 water from exhaustion ; for she had walked to and 
 from market in the morning, had exerted herself in 
 dancincr in the evening', and had been wanderinor all 
 night in the fields without food. The allegation 
 that the prisoner had violated the deceased, and 
 therefore had a motive to destroy her, was mere 
 conjecture ; and from the circumstance of her having 
 been out all night with the prisoner, with whom she 
 was previously unacquainted, and Irom the state of 
 the garments which she took off at Mrs. Butler's, as 
 compared with those for which she exchanged them, 
 it was clear that the sexual intercourse had taken 
 place before she called there, at which time she 
 made no complaint, but appeared composed and 
 cheerful. Again, the inference contended for, from 
 the state of the grass, with drops of blood upon it
 
 RULES OF EVIDENCE. 249 
 
 where the dew had not been disturbed, was equally 
 groundless ; for there was no proof that the dew 
 had not been deposited after the drops of blood ; 
 and it clearly appeared that the footsteps of the 
 prisoner and the deceased could not be traced on 
 other parts of the grass where, beyond all doubt, 
 they had been together in the course of the night. 
 Now, suppose that the alibi had been incapable of 
 satisfactory proof, that the prisoner had not been 
 seen after parting from the deceased, and that the 
 inconclusiveness of the inference suoorested from 
 the discovery of drops of blood on the grass, where 
 there were no footmarks, had not been manifested 
 by the absence of those marks in other places where 
 they had unquestionably been together in the night, 
 — the guilt of the prisoner would have been con- 
 sidered indubitable, and his execution certain ; and 
 yet these exculpatory circumstances were entirely 
 collateral, and independent of the facts which were 
 supposed to be clearly indicative of guilt [g). 
 
 Two other cases, equally remarkable, though not 
 so well known, may be instanced as instructive 
 illustrations alike of the fallibility of human testi- 
 mony, particularly as to identification of persons, 
 
 {g) The brother of the deceased brought an appeal of murder, in 
 which the defendant tendered wager of battle, and the proceedings 
 led to the abolition, by St. 59 Geo. III. c. 46, of that barbarous relic 
 of feudal times. See Ashford v. Thornton, i B. & Aid. 405 ; Short- 
 hand Rep., and Observations upon the case of Abraham Thornton, by 
 Edward Holroyd, Esq., where the judge's notes of the evidence are 
 given. There is another report of the case and the subsequent 
 proceedings in the Court of King's Bench, printed at Warwick, 181 8. 
 See also i Woodall's Celebrated Trials, p. i, and there is an account 
 of the case of a more popular character, and obviously partial, in 
 6 Celebrated Trials, p. 227.
 
 250 RULES OF EVIDENCE. 
 
 and of the fact that tlie most cogent circumstances of 
 suspicion are sometimes cap.ible of a [)erlectly satis- 
 factory explanation. 
 
 A young man named Pook was tried at the 
 Central Criminal Court in 1S71 for the murder of 
 Jane JVIaria Clousen. Evidence was given on 
 behalf of the Crown to the following effect. The 
 deceased, a girl of seventeen, had been servant 
 in the house of the prisoner's father at Greenwich, 
 where the prisoner also lived. On the iith of 
 April she went to stay with friends. Cn Tuesday, 
 the 25th of April, she was in High Street, Deptford, 
 at 6.40. At 4.15 A.M. next day she was found in a 
 dying state in Kidbrooke Lane with her head 
 beaten in. On the 27th of April a hammer covered 
 with blood and hair was found near the scene of the 
 murder in the direction of prisoner's home. A 
 metal v/histle was found about fifteen yards from 
 the scene of the murder, and it was proved that 
 the prisoner was in the habit of using a similar 
 whistle. The post-'morte')n examination showed 
 that the girl was pregnant. Several persons swore 
 that a young man in a dark coat and light trousers 
 bought a hammer similar to the one produced at a 
 shop kept by a man named Thomas, on Monday, 
 the 24th, at about 7.45 p.m., and two of them 
 deposed that this man was the prisoner. Two 
 witnesses swore that on the evening of Tuesday, the 
 25th of April, they saw the prisoner in Kidbrooke 
 Lane in company with a girl, one of them at about 
 6.40 P.M., the other at about 8.45 p.m. Two other 
 witnesses saw him running into Greenwich at about
 
 RULES OF EVIDENCE. 25 1 
 
 9 P.M. A few minutes later he entered a shop at 
 Greenwich in a very hot and muddy condition, and 
 brushed his clothes there. The shirt and trousers 
 worn by the prisoner on that day had some spots of 
 blood on them. Some time between the 23rd and 
 30th of April, he had shaved off his moustache, and 
 had told some girls he had done so for some private 
 theatricals, which was untrue. On Sunday, the 
 23rd of April, he had told the same girls that he 
 was going to London on the Tuesday evening, 
 whereas his defence was that he had gone to 
 Lewisham. It may be remarked that this evi- 
 dence, if unanswered, contains all the elements 
 necessary for a complete circumstantial proof; 
 the corpus delicti, motive, possession of the means 
 of crime, other inculpatory facts such as the whistle, 
 spots of blood on his clothes, identification near 
 the scene on the night in question, and his run- 
 ning home ; there was also evidence of falsehoods 
 told as to his intended movements upon the 
 night in question, with a suggested attempt at 
 disouise. 
 
 The evidence for the defence was equally com- 
 plete. Prisoner was subject to fits, and was con- 
 stantly watched by his family, and they saw no signs 
 of any intimacy which would supply the motive 
 suggested for the murder. On the evening of 
 Monday, 24th, prisoner was with his brother 
 the whole evening and did not go to Thomas's 
 shop. Thomas's books only showed the sale 
 of one hammer that day or near it, and the pur- 
 chaser was called. The prisoner never had a 
 pair of light trousers in his life, and was shown to
 
 252 RULES OF EVIDEN'CE. 
 
 hiive had liis whistle after the murder. Mis whole 
 family saw him at home on Tuesday eveniiiL; till 
 about 7.20, and again soon after 9. Several inde- 
 pendent witnesses saw him on Lewisham Bridge 
 from about 8.0 till 8.30. According to the defence 
 he had gone there to meet his sweetheart, who had 
 failed to come, and after waiting about forty- 
 minutes, he had run back to Greenwich, arriving 
 there by nine o'clock. The blood on his clothes 
 was reasonably accounted for, one witness had 
 noticed it on his shirt on the day preceding the 
 murder. He had shaved his moustache four days 
 after the murder and it had not sufficiently changed 
 his appearance to effect any disguise. Having had 
 some flirtation with one of the girls called, he 
 naturally would not say he was going to Lewisham 
 after another young woman. The prisoner was 
 acquitted {Ji). 
 
 A German named Franz was indicted for the 
 murder of Martha Halliday. Deceased was the 
 caretaker of Kingswood Rectory, four miles from 
 Reigate. On Monday, the loth of June, 1861, she 
 was left alone in the house after about 6 p.m. Next 
 morning she was found dead on the floor of her 
 bedroom in her night-dress. Eleath was caused by 
 suffocation, a stocking having been thrust into her 
 mouth apparently as a gag. Her hands and feet 
 had been tied with a peculiar kind of cord. No 
 
 (A) Reg. V. Pook, coratn Bovill, L.C.J., C.C.C. 1871. See Times, July 
 13-17, 1871, and Pook\. Crosltmd^ Times, February 2 and 3, 1872. 
 As in Thornton's case, popular feeling ran very high against Pook— 
 largely in consequence of sensational anticipations of the evidence in 
 the newspapei's.
 
 RULES OF EVIDENCE. 253 
 
 property was missing, the thieves having probably 
 been disturbed. Footprints outside showed that 
 two men had made several attempts to get into the 
 house, finally entering by the window of the 
 deceased's bedroom. Near the body was found a 
 packet of papers consisting of certificates of birth 
 and baptism, and a passport, all belonging to the 
 prisoner, and containing his personal description ; 
 also a begging letter signed Adolphe Krohn, a 
 letter from Mile. Tietjens, the singer, and a list of 
 addresses. In the room was found a rou^rh stick 
 broken off a tree. Early in July the prisoner was 
 arrested in London, where he was passing under a 
 false name. Evidence was given for the prosecu- 
 tion to the following effect : About noon on Sun- 
 day, the 9th of June, two foreigners took lodgings 
 at " The Cricketers," at Reigate. On Monday, the 
 lolh of June, they purchased a ball of cord of 
 peculiar make, the same as that with which the 
 deceased woman had been bound. Another piece 
 of the same kind was found tied round a shirt left 
 by the prisoner at his London lodgings when he 
 was arrested. This cord was so unusual that it 
 could not be matched except at the Reigate shop 
 and at the maker's. Various persons identified the 
 prisoner more or less positively as one of the two 
 foreigners at Reigate. He was the taller and fairer, 
 the other was short and dark. At 4 p.m. on the 
 Monday (loth of June) the foreigners left "The 
 Cricketers." Later that day they were seen going 
 from Reigate towards Kingswood ; about 7 p.m. two 
 men who spoke a foreign language were seen about a 
 mile from Kingswood Rectory under a beech-tree,
 
 254 RULES OF EVIDENXE. 
 
 which corresponded with the broken stick found. 
 At about the same time two foreigners were seen 
 going from the beech-tree towards the Rectory, but 
 the witness who met them declared that he had 
 met the same two men at an hour on Sunday after- 
 noon when the Reigate foreigners were undoubtedly 
 at "The Cricketers." 
 
 No evidence of an alibi was forthcoming, though 
 the prisoner professed to have been in London at 
 the date of the murder. The story he told the 
 police on the 8th of July was as follows. He had 
 landed at Hull and set out to walk to London. 
 On the wav he had fallen in with two compatriots, 
 one of whom was named Adolphe Krohn, the 
 other William Gerstenberg, who was about prisoner's 
 height and colour and who kept importuning him 
 to give him papers of identification. Prisoner 
 refused, but one night while he was asleep, the 
 other two went off with his bag, containing his 
 papers and a suit of clothes like those that he was 
 wearing. The papers included those found at 
 Kingswood and also a testimonial and a certificate of 
 confirmation. On arriving in London he learned 
 from the newspapers that he was accused of murder, 
 and in alarm changed his name. In support of this 
 story it was proved by independent evidence that 
 on the 9th of July a tramp brought to a local J. P. 
 the testimonial and certificate mentioned by prisoner, 
 with his diary from his landing in Hull till he lost 
 his bag. They were picked up in Northampton- 
 shire. It was also shown that he had arrived in 
 Hull with a bag, but had none when apprehended. 
 Mile. Tietjens had given her letter to a German
 
 RULES OF EVIDENCE. 255 
 
 calling himself Adolphe Krohn, who resembled the 
 prisoner but was not the same man. Prisoner 
 stated that the piece of cord with which his shirt 
 was tied up was picked up by him near his lodgings 
 in Whitechapel. This was close to the factory 
 where it was made, and other cord like it was 
 picked up at the same spot by a witness called for 
 the defence. The prisoner was acquitted (/). 
 
 Rule 2, — The btwden of proof is akvays on the 
 pat'ty who asserts the existence of any fact zvhich 
 infers lec^al accountability (/('). This is a universal 
 rule of jurisprudence, founded upon evident principles 
 of justice ; and it is a necessary consequence, that 
 the affirmant party is not absolved from its obligation 
 because of the difficulty which may attend its 
 application. No man can be justly deprived of 
 his social rights without proof chat he has com- 
 mitted some act which legally involves the forfeiture 
 of them. The law respects the status in qiio, and 
 regards every man as legally innocent until the 
 contrary be proved. To prove a negative is in 
 most cases difficult, in many impossible. Criminality 
 therefore is never to be presumed. But neverthe- 
 less the operation of this rule may, to a certain 
 extent, be modified by circumstances which create 
 a counter-obligation, and shift the omis probandi. 
 Lord Brougham, speaking of principles that were 
 applicable to all cases, but especially to such as 
 
 {i) Reg. V. Franz, Croydon Summer Assizes, l86l, coratn Black- 
 burn, J. See Times, August 7, 1861. Ann. Reg. 1861, p. 138. 
 
 {k) I Starkie's L. of Ev. 162 ; i Greenleaf's L. of Ev. pt. ii. c. 3. The 
 proposition is equally true of every fact whether implying responsibility 
 or not.
 
 256 RULES OF EVIDENCE. 
 
 rest u{)on circumstantial evidence, said that " the 
 burthen of the proof often shifts about from one party 
 to the other in the process of a cause, according as 
 the successive steps of the inquiry, by leading to 
 inferences decisive until rebutted, cast on one or 
 the other party the necessity of protecting himself 
 from the consequences of such inferences" (/). It 
 follows, from the very nature of circumstantial 
 evidence, that, in drawing an inference or con- 
 clusion as to the existence of a particular fact from 
 other facts that are proved, regard must always be 
 had to the nature of the pirticular case, and the 
 facility that appears to be afforded either of explana- 
 tion or contradiction [m). Lord Ellenborough said 
 that no person accused of crime is bound to offer 
 any explanation of his conduct, or of circumstances 
 of suspicion which attach to him ; but nevertheless, 
 if he refuse to do so, where a strong priuid facie 
 case has been made out, and when it is in his own 
 power to offer evidence, if such exist, in explana- 
 tion of such suspicious appearances, which would 
 show them to be fallacious and explicable consis- 
 tently with his innocence, it is a reasonable and 
 justifiable conclusion that he refrains from doing so 
 only from the conviction that the evidence so 
 suppressed or not adduced would operate adversely 
 to his interest (/z). It is therefore a qualification of 
 the rule in question, that " in every case the onus 
 probandi lies on the person who is interested to 
 
 (/) Waring \. Waring, 6 Moore's P. C. Rep. at p. 355. 
 (;«) /"^r Abbott L.C.J, in Rex v. Burdett, 4 B. & Aid. 161. 
 {n) Rexv. Lord Cochrane and others^ 1814, Shorthand Report by 
 Gurney. See p. 99 supra.
 
 RULES OF EVIDENCE. 257 
 
 support his case by a particular fact, which lies 
 more particularly within his own knowledge, or of 
 which he is supposed to be cognizant. This indeed 
 is not allowed to supply the want of necessary proof, 
 whether direct or presumptive, against a defendant, 
 of the crime with which he is charged ; but when 
 such proof has been given, it is a rule to be applied 
 in considering the weight of the evidence against 
 him, whether direct or presumptive, when it is un- 
 opposed, unrebutted, or not weakened by contrary 
 evidence, which it would be in the defendant's 
 power to produce, if the fact directly or presump- 
 tively proved were not true" [0). It has been well 
 observed, that in such case we have something like 
 an admission that the presumption is just (/>). " In 
 drawing an inference or conclusion, from facts 
 proved." said Lord Chief Justice Abbott (^), " regard 
 must always be had to the nature of the particular 
 case, and the facility that appears to be afforded 
 either of explanation or of contradiction. No 
 person is to be required to explain or contradict, 
 until enough has been proved to warrant a reason- 
 able and just conclusion against him, in the absence 
 of explanation or contradiction ; but when such 
 proof has been given, and the nature of the case is 
 such as to admit of explanation or contradiction, if 
 the conclusion to which the proof tends be untrue, 
 and the accused offers no explanation or contradic- 
 tion, can human reason do otherwise than adopt 
 the conclusion to which the proof tends ? The 
 
 (<?) Per Holroyd, J., in J^cx v. Burdctf^ 4 B. & Aid. 140 
 
 {p) /'(fr Best, J. ib. 122. 
 
 {q) Ibid. 161 ; and see the language of Bayley, J., ib. 150. 
 
 :.E. s
 
 258 RULES OF EVIDENCE. 
 
 premises may lead more or less strongly to the 
 conclusion, and care must be taken not to draw the 
 conclusion hastily ; but in matters that regard the 
 conduct of men, the certainty of mathematical 
 demonstration cannot be required or expected ; and 
 it is one of the peculiar advantages of our juris- 
 prudence, that the conclusion is to be drawn by the 
 unanimous judgment and conscience of twelve men 
 conversant with the affairs and business of life, and 
 who know that where reasonable d(3ubt is enter- 
 tained, it is their duty to acquit ; and not of one or 
 more lawyers, whose habits might be suspected of 
 leading them to the indulgence of too much subtlety 
 and refinement." To the same effect Lord Chief 
 Justice Tindal, on a trial for high treason, said, that 
 "the offence charged against the prisoner must be 
 proved by those who make the charge. The proof 
 of the case against the prisoner must depend for its 
 support not upon the absence or want of any 
 explanation on the part of the prisoner himself, but 
 upon the positive affirmative evidence of the guilt 
 that is given by the Crown. It is not however an 
 unreasonable thing," said the learned judge, " and it 
 daily occurs in investigations, both civil and criminal, 
 that if there is a certain appearance made out 
 against a party, if he is involved by the evidence in 
 a state of considerable suspicion, he is called upon 
 for his own sake and his own safety to state and 
 bring forward the circumstances, whatever they 
 may be, which might reconcile such suspicious 
 appearances with perfect innocence (7-)," But this 
 
 (r) Reo-. V. Frost, Monmouth Sp. Comm. Jan. 1840, Gurney's 
 Shorthand Report, 689 ; and see the language of Lord Ellenborough 
 in Rex v. Dcspard, 28 St. Tr. 521 ; and in Rex v. Watso7i^ 32 ib. 583.
 
 RULES OF EVIDENCE 259 
 
 doctrine, it has been well observed, is to be 
 cautiously applied, and only in cases where it is 
 manifest that proofs are in the power of the accused, 
 not accessible to the prosecution [s). 
 
 It is a necessary consequence of this rule, rather 
 than a substantive rule, that the corpus delicti must 
 be clearly proved before any effect is attached to cir- 
 cumstances supposed to be inculpatory of a particular 
 individual ; but this is a branch of the subject of so 
 much importance and of such comprehensive extent, 
 as to require consideration in a separate chapter. 
 
 Rule 3. — hi all cases, whether of direct or cir- 
 cumstantial evidenc<' , the best evidence must be adduced 
 zvkich the nature of the case admits. The suppres- 
 sion or non-production of pertinent and cogent evi- 
 dence necessarily raises a strong presumption against 
 the party who withholds such evidence when he has 
 it in his power to produce it ; of which some inter- 
 esting exemplifications appear in other parts of this 
 Essay if). This rule applies a fortiori to circum- 
 stantial evidence, a kind of evidence which, for 
 reasons which have been already urged, is in- 
 herently inferior to direct and positive testimony ; 
 and therefore whenever such evidence is capable of 
 being adduced, the very attempt to substitute a 
 description of evidence not of the same degree of 
 force, necessarily creates a suspicion that it is with- 
 held from corrupt and sinister motives (?/). Nor is 
 
 (j) Per Shaw, C. J., in Prof. Webster's Case, Bemis's Report, p. 467 ; 
 see p. 109, supra, for other references to this case. 
 (/) See Ch. iii., ss. 5, 7, pp. 81 and 1 1 1, supra. (u) See p. 37 supra-
 
 26o RULES OF EVIDENCE. 
 
 the application of the rule confined to the j)roof of 
 the principal fact ; it is " the master rule which 
 governs all the subordinate rules " (x) and applies 
 alike to the proof of every individual constituent 
 fact, whether principal or subordinate. Thus, in 
 a trial for murder, Mr. Baron IMaule refused to 
 receive evidence of the contents of a coffin-plate in 
 order to establish the identity of the deceased, on 
 the ground that, being removable, it might have 
 been produced, and there being no other case of 
 identity, stopped the case (y). The rule is however 
 necessarily relaxed where its application becomes 
 impracticable by the act of the party who would 
 otherwise be entitled to claim its protection ; as 
 where a witness is kept out of the way by or on his 
 behalf {2), or where a deed or other instrument in 
 his possession is withheld by him after notice to pro- 
 duce (a). Similarly the rules of law allow secondary 
 instead of primary evidence to be given where, from 
 circumstances over which neither party has control, 
 the production of the primary evidence is actually 
 or practically impossible, as where an original docu- 
 ment has been lost, or is of such a nature that it 
 cannot reasonably be moved, such as an inscription 
 on a tombstone or a writing on a wall (d). On like 
 principles, it is enacted by statute that w^here a 
 
 (x) Burke's Works : Report of the Committee of the House of 
 Commons appointed to inspect the Lords' Journals in relation lo 
 their proceeding in the trial of Warren Hastings, Esquire, under 
 the heading, " Debates on Evidence." Ed. Riving ton, 1822, 
 vol. xiv., p. 377. (j') Reg. V. Edge., Chester Spr. Ass. 1842. 
 
 {z) Hawk. P. C. Bk. 2. c. _;6. s. 15 ; Reg. v, Scaife, 20 L. J., M. C, 
 229 ; 17 Q. B., 238. See Rex v. Harrison., 12 St. Tr. at col. 852. 
 
 {a) Rex v. Hunter., 3 C. & P. 591 ; 4 ib., 128 ; Rex v. Haiuortk, 4G 
 & P. 254 ; and see Ch. iii. s. 7, p. 1 1 1, supra. 
 
 {b) Mortimer v. McCallan, 6 M. & W., 67.
 
 RULES OF EVIDENCE. 26 1 
 
 Witness is dead, or too ill to travel, his deposition may 
 be read to the jury (c). 
 
 Considering, moreover, the inherent infirmity of 
 human memory, in the fair construction and appli- 
 cation of this rule, evidence ought in all criminal 
 cases, and a fortiori in cases of circumstantial 
 evidence, to be received with caution, wherever any 
 considerable time has elapsed since the commission 
 of the alleged offence. The justice and efficacy of 
 punishment, and more especially of capital punish- 
 ment, inflicted after the lapse of any considerable 
 interval, at least where the offender has not with- 
 drawn himself from the reach of justice, are often 
 questionable {d). An unavoidable consequence of 
 great delay is, that the party is deprived of the 
 means of vindicating his innocence, or of proving 
 the attendant circumstances of extenuation ; the 
 crime itself becomes foro-otten, or is remembered 
 but as matter of tradition, and the offender may 
 have become a different moral being : in such cir- 
 cumstances punishment can seldom, perhaps never, 
 be efficacious for the purpose of example. On these 
 accounts judges and juries are now always reluctant 
 to convict parties charged with offences committed 
 long previously. 
 
 {c) The Indictable Ofifences Act, 1848 (11 & 12 Vict. c. 42, s. 17; 
 
 {d) See Rex V. Home, executed at Nottingham in 1759, for the 
 murder of his natural child forty years before ; 4 Celebrated Trials, 
 396 ; and Rex v. Wall, 28 St. Tr. 51, whose execution took place after 
 the lapse of twenty years from the commission of the offence ; and 
 see the strictures of Lord Campbell on this case, Lives of the Chief 
 Justices, vol. iii., p. 147, and Rex v . Roper, Leicester Sum. Ass. 1836. 
 Roper was tried for a murder committed 34 years before, but was 
 acquitted on the ground that he had made a mere mad confession. 
 See Ann. Reg. 1836, p. 285.
 
 262 RULES OF EVIDENCE. 
 
 Rule 4. — In 07'dcr to justify the infei-ence of guilty 
 the inc2ilpatory facts must be incompatible with the 
 innocence of the accused, and incapable of explanation 
 upon any other reasonable hypothesis than that of his 
 gtctlt. This is the fundamental rule, the expcrimcntuni 
 crucis by which the relevancy and effect of circum- 
 stantial evidence must be estimated. The awards 
 of penal law can be justified only when ihe strength 
 of our convictions is equivalent to moral certainty ; 
 which, as we have seen, is that state of the judg- 
 ment, grounded upon an adequate amount of appro- 
 priate evidence, which induces a man of sound mind 
 to act without hesitation in the most important con- 
 cerns of human life. In cases of direct credible 
 evidence, that degree of assurance immediately 
 and necessarily ensues ; but in estimating the effect 
 of circumstantial evidence, there is of necessity 
 an ulterior intellectual process of inference which 
 constitutes an essential element of moral certainty. 
 The most important part of the inductive process, 
 especially in moral inquiries, is the correct exercise 
 of the judgment in drawing the proper inference 
 from the known to the unknown, from the facts 
 proved to the facttwi probandum. A number of 
 secondary facts of an inculpatory moral aspect being 
 given, the problem is, to discover their causal moral 
 source, not by arbitrary assumption, but by the 
 application of the principles of experience in relation 
 to the immutable laws of human nature and con- 
 duct. It is not enough, however, that a particular 
 hypothesis will explain all the phenomena ; nothing 
 must be inferred merely because, if true, it would 
 account for the facts ; and if the circumstances are
 
 RULES OF EVIDENCE. 263 
 
 equally capable of solution upon any other reason- 
 able hypothesis, it is manifest that their true moral 
 cause is not exclusively ascertained, but remains in 
 uncertainty ; and they must therefore be discarded 
 as conclusive presumptions of guilt. Every other 
 reasonable supposition by which the facts may be 
 explained consistently with the hypothesis of inno- 
 cence must therefore be rigorously examined and 
 successively eliminated ; and only when no other 
 supposition will reasonably account for all the con- 
 ditions of the case, can the conclusion of guilt be 
 legitimately adopted (e). In a case before the Court 
 of Justiciary at Edinburgh, the Lord Justice Clerk 
 Cockburn said that the matter might remain most 
 mysterious, wholly unexplained ; they might not be 
 able to account for it on any other supposition than 
 that of the prisoner's guilt ; but that still that sup- 
 position or inference might not be a ground on 
 which they could safely and satisfactorily rest their 
 verdict against her {/). It seems, however, hardly 
 possible to conceive of such a state of facts, unless 
 somewhere in the chain of evidence some serious 
 link was wanting ; so that the proved facts although 
 consistent so far as they went only with guilt, still 
 failed to establish it. If however the hypothesis 
 fulfils the required conditions, the conclusion is no 
 longer a gratuitous assumption, but becomes, as it 
 were, part of the induction ; and an additional test 
 is obtained, by which, as by the application of a 
 theorem of verification, the conclusion may be 
 tested, and, if true, corroborated and confirmed ; 
 
 (<?) See Traite de la Preuve. Par Mittermaier, Ch. 59. 
 {/) Reg. V. Madeleine Smith, see pp. 300-310, infra.
 
 264 RULES OF EVIDENCE. 
 
 since, if It 1:)C true, It must h.irnionisc w Iili. and 
 satisfactorily account lor, all the facts, to the ex- 
 clusion of every other reasonable hypothesis. In 
 accordance with these sound principles of reason- 
 ing' and inference, Lord Chief Baron Macdonald 
 said that he had ever understood the rule as to 
 clrcumsianlial evidence to In; that where the circum- 
 stances are true, where they are well connected, 
 where they support each other in a clear and lucid 
 manner, and where they cannot reasonably be 
 accounted for unless the charge be true that is 
 imputed to the prisoner, then the jury were justified 
 in convicting upon that evidence {^). On another 
 occasion the same learned judge said that the nature 
 of circumstantial evidence was this, that the jury 
 must be satisfied that there is no rational mode of 
 accounting for the circumstances, but upon the sup- 
 position that the prisoner is guilty (/i). Mr. Baron 
 Alderson, with more complete exactness, said, that 
 to enable the jury to bring in a verdict of guilty, it 
 was necessary, not only that it should be a rational 
 conviction, but that it should be the only rational 
 conviction which the circumstances would enable 
 them to draw (/). In Humphreys' case. Lord 
 Meadowbank said to the jury, " Your duty is to 
 consider what is the reasonable inference to be 
 drawn from the whole circumstances ; in short, 
 whether it is possible to explain the circumstances 
 upon grounds consistent with the innocence to the 
 panel, or whether, on the contrary, they do not 
 necessarily lead to a result directly the reverse " (/^). 
 
 (£■) Rex V. Smithy for arson, see p. 39, supra. 
 
 (Ji) Rexv. Patch, Surrey Spr. Ass. 1805. See pp. 390 395, i?i/ra 
 
 (j) Rex V. Hodges, 2 Lewin, C. C. 227. 
 
 {k) Swinton's Rep., p. 353. See p. 201, supra.
 
 RULES OF EVIDENCE. 265 
 
 It follows, as a consequence of this rule, that 
 wherever several persons are jointly charged with 
 any offence, either the joint complicity of all must 
 be proved, or it must be left in no doubt which out 
 of two or more actually committed the offence. In 
 the case of the two Mannings their counsel severally 
 endeavoured to throw the guilt exclusively on the 
 other ; and Lord Chief Baron Pollock told the 
 jury that if they thought one of the prisoners was 
 guilty, but could not possibly decide which was the 
 guilty party, they might be reduced to the alter- 
 native of returning a verdict of not guilty as to 
 both ; but, that if, looking: at the whole transaction, 
 they came to the conclusion that both must, accord- 
 ing to the ordinary course of human affairs, have 
 been concerned in the murder, it would be their 
 duty to find both the prisoners guilty (/}. 
 
 A learned author thinks that almost all writers 
 have attempted to estimate the force of evidence 
 upon a wrong principle ; that the true principle is 
 to estimate its value entirely by the effect which it 
 does in fact produce upon the minds of those who 
 hear it, and that the value of evidence is measured 
 as exactly by the state of mind which it produces, 
 as a force is measured by the weight which it will 
 lift (/;/). But, not to dwell upon the fallacy of every 
 attempt to compare the conclusions of moral reason- 
 ing with the constrained and inevitable consequence 
 of mechanical force, this would be to give up a safe, 
 practical, and philosophic test, the validity and 
 
 (/) Reg. V. Manning and Wife., C. C. C, Oct. 1849 (for murder), 
 (7;/) See an able and interesting essay on the characteristics ol 
 EngHsh Law, Camb. Ess. 1857, p. 27.
 
 266 RULES OF EVIDENCE. 
 
 sufficiency of which are recognised in every other 
 branch of philosophical and scientific research, for 
 an indeterminate and empirical standard incapable of 
 independent verification, and would virtually justify 
 the most erroneous determinations of the tribunals. 
 One reason why hearsay evidence is excluded is 
 that it is very often calculated to produce, and, if 
 admitted, certainly would often produce, with persons 
 unaccustomed to weigh evidence, an effect wholly 
 unjustifiable. 
 
 Rule 5. — If there be any reasonable doubt of the 
 ginlt 0/ the accused, he is entitled as of right to be 
 acquitted. In other words, there must be no 
 uncertainty as to the reality of the connection of 
 the circumstances of evidence with the factum 
 probandum, or as to the sufficiency of the proof of 
 the coT-pus delicti, or, supposing those points to be 
 satisfactorily established, as to the personal com- 
 plicity of the accused. This is in strictness hardly 
 so much a distinct rule of evidence as a consequence 
 naturally flowing from, and virtually comprehended 
 in, the preceding rules. Indeed, it is more properly 
 a test of the right application of those rules to the 
 facts of the particular case. The necessity and 
 value of such a test are manifest from the considera- 
 tion of the numerous fallacies incidental to the for- 
 mation of the judgment on indirect evidence and 
 contingent probabilities, and from the impossibility 
 in all cases of drawing the line between moral 
 certainty and doubt. In questions of civil right the 
 tribunal will often decide according- to the greatest 
 amount of probability in favour of one or the other of
 
 RULES OF EVIDENCE. 267 
 
 the litigant parties ; but where life or liberty are in 
 the balance, it is neither just nor necessary that the 
 accused should be convicted but upon conclusive 
 evidence {71). While it is certain that circumstantial 
 evidence is frequently most convincing and satis- 
 factory, it must never be forgotten, as was remarked 
 by that wise and upright magistrate. Sir Matthew 
 Hale, that " persons really innocent may be en- 
 tangled under such presumptions, that many times 
 carry great probabilities of guilt (o) " ; wherefore, as 
 he justly concludes, "this kind of evidence must be 
 very warily pressed." Many adverse appearances 
 may be outweighed by a single favourable one, and 
 all the probabilities of the case may not be before 
 the court. The Lord Justice Clerk Cockburn, in 
 his charge in the case of Madeleine Smith, before 
 mentioned, said, " I wish you to keep in mind that 
 although you may not be satisfied with any of the 
 theories that have been propounded on behalf of 
 the prisoner, still nevertheless the case for the prose- 
 cution may be radically defective in evidence " (/). 
 It is safer, therefore, as wisely said by Sir Matthew 
 Hale, to err in acquitting than in convicting, and 
 
 («) This sentence has been left substantially as written ; but it 
 points rather to a certain inevitable infirmity in human judgment 
 than to any real c-r inherent difference between the search after truth 
 in civil and criminal cases, and it hardly seems consistent with much 
 that follows. Men will pronounce without hesitation that a person 
 owes another a hundred pounds on evidence on which they certainly 
 would not hang him ; and yet all the rules of law that apply to the one 
 case apply to the other, and the processes are the same. The 
 difference in result is not logical — but human nature is made up of a 
 good deal besides logic, and " naturam expellas furca, tamen usque 
 recurret." 
 
 (o) 2 P. C. ch. 39 ; Rex v. Thornton^ pp. 244-249, supra, is a 
 remarkable illustration of this. (^) pp. 300-310, infra.
 
 268 RULES OF EVIDENCE. 
 
 better that five orullty persons should escape uti* 
 punished than that one innocent j)erson should die (^). 
 Paley controverts the maxim, and urges that " he 
 who falls by a mistaken sentence may be considered 
 as falling for his country, whilst he suffers under the 
 operation of those rules, by the general effect and 
 tendency of which the welfare of the community is 
 maintained and upholden " (r). There is no judicial 
 enormity which may not be palliated or justified 
 under colour of this execrable doctrine, which is 
 calculated to confound all mc^ril and legal distinc- 
 tions ; its sophistry, absurdity, and injustice have 
 been unanswerably exposed by one of the ablest of 
 lawyers and most upright of men (.?). Justice never 
 requires the sacrifice of a victim ; an erroneous 
 sentence is calculated to produce incalculable and 
 irreparable mischief to individuals, to destroy all 
 confidence in the justice and integrity of the 
 tribunals, and to introduce an alarming train of 
 social evils as the inevitable result. Every con- 
 sideration of truth, justice, and prudence requires, 
 therefore, that where the guilt of the accused is not 
 incontrovertibly established, however suspicious his 
 conduct may have been, he shall be freed from 
 legal accountability. No rule of procedure is more 
 firmly established, as one of the great safeguards of 
 truth and innocence, than the rule in question ; and 
 it is the invariable practice of judges to advise juries 
 to acquit whenever they entertain any fair and 
 reasonable doubt. The doubt however must be not 
 
 {q) 2 P. C. c. 39. 
 
 (r) Moral and Political Philosophy, book vi., ch. 9 (at the end). 
 {s) Romilly's Obs. on the C. L. of England, 72 ; Best on Presumph 
 tions, p. 292.
 
 RULES OF EVIDENCE. 269 
 
 a trivial one, such as speculative ingenuity may 
 raise, but a conscientious one which may operate 
 upon the mind of a rational man acquainted with 
 the affairs of life (^). "If," said Lord Chief Baron 
 Pollock to the jury, " the conclusion to which you 
 are conducted be that there is that degree of 
 certainty in the case that you would act upon it in 
 your own grave and important concerns, that is the 
 degree of certainty which the law requires, and 
 which will justify you in returning a verdict of 
 guilty " (it). 
 
 The rules of evidence, as founded on reason and 
 consecrated in the judgments of the courts, consti- 
 tute the best means for discoverino- truth, and are 
 an integral part of our legal system, essential alike 
 for private and social security. Nevertheless, 
 language of most dangerous tendency in regard to 
 them has occasionally fallen from learned judges, 
 which implies that they may be modified, according 
 to the enormity of the crime, or the weightiness of 
 the consequences which attach to conviction. Lord 
 Finch, afterwards Lord Chancellor Nottingham, on 
 the trial of Lord Cornwallis, said, "The fouler the 
 crime is, the clearer and the plainer ought the proof 
 to be" {z). " The more flagrant the crime is," said 
 Mr. Baron Legge, " the more clearly and satis- 
 factorily you will expect that it should be made out 
 
 (/) Per Parke, B. in Pe^. v. Taivell^ see pp. 313-317, infra. 
 
 {u) Reg. V. Manttmg a?id Wife, C. C. C, Oct. 1849 ; and see the 
 language of Lord Meadowbank in Reg. v. Humphreys., referred to and 
 quoted p. 264, supra ; and of Shaw, C. J., in Prof. Webster's Case, 
 p. 109, supra., Bemis's Rep. 470. 
 
 {x) 7 St. Tr. 149, and see Rex v. Crossfield, 26 St. Tr. 218.
 
 270 RULES OF EVIDENCE. 
 
 to you " (;'). Mr. Justice Holroyd is represented to 
 have said, that " the greater the crime, the stronger 
 is the proof required for the purpose of convic- 
 tion " [s). 
 
 Upon a trial for high treason, Lord Chief Justice 
 Dallas, after adverting to the extreme guilt of the 
 crime, as seeking the subversion of the established 
 government, and aiming at the property, the liberty, 
 and the lives of all, said, " Still, however, nothing 
 will depend upon the comparative magnitude of the 
 offence ; for be it great or small, every man stand- 
 ing in the situation in which the prisoner is placed, 
 is entitled to have the charge against him clearly 
 and satisfactorily proved ; with only this difference 
 (and I make the observation at the outset, as being 
 in favour of the prisoner), that in proportion to the 
 magnitude of the offence, and the consequences 
 which result from his conviction, ought the proof to 
 be clear and satisfactory " (^). In the case of the 
 Glasgow cotton-spinners for conspiracy and murder, 
 the learned Lord Justice Clerk Boyle said, that the 
 magnitude of the charge ought to have no other 
 effect than rendering it more necessary that the jury 
 should be fully satisfied that the evidence is clear 
 upon the subject (d). The distinction was more 
 broadly laid down by the late Lord Justice Clerk 
 Cockburn, in Madeleine Smith's case (^). "In 
 
 (j) Rex V. Blandy, 18 St. Tr. 1 186. 
 {z) Rex V. Hodson, i Lewin, C. C. 261. 
 {a) Rexv. Ings^ 33 St. Tr. 1135. 
 
 ip) Reg. V. Hanson and others^ Court of Justiciary, 1838 ; Short- 
 hand Rep. 366. 
 
 ic) Pp. 300-310, infra.
 
 RULES OF EVIDENCE. 27 1 
 
 drawing an inference," said the learned judge, '* you 
 must always look to the import and character of 
 the inference which you are asked to draw " ; and 
 the same distinction pervades the whole of the 
 charge in that celebrated case. 
 
 These dicta are opposed to the principles of 
 reason, and inconsistent with all established rules 
 of law. No legal doctrine is more firmly settled 
 than that there is no difference between the rules of 
 evidence in civil and criminal cases ; but if under 
 any circumstances they may be relaxed according to 
 notions of supposed expediency, they cease to be, 
 in any correct and intelligible sense, rules for the 
 discovery of truth, and the most valued rights of 
 civilized men become the sport of chance. The 
 logical consequences of any such power of relaxation 
 would be, that the rules of evidence are radically 
 different in civil and criminal cases, and different 
 even in criminal cases, as they are applied to 
 particular classes of crime, according to some arbitrary 
 and imaginary measure for estimating their relative 
 enormity or penal consequence. Is the dictum, it 
 may be asked, to be restricted to cases where the 
 consequence of conviction may be loss of life } Is 
 it to be repudiated when it may be followed by the 
 inferior penalties of imprisonment or penal servitude } 
 Is it to be applied or rejected in application in the 
 numerous cases, civil as well as criminal, where 
 physical and social consequences may follow, which, 
 though of a different kind, may be scarcely less fatal 
 to the individual than loss of liberty, or even of 
 life itself .f* And if the maxims of evidence may be
 
 272 RULES OF EVIDENCE. 
 
 made more stringent in one direction, there is no 
 reason why they may not be relaxed in another, 
 according to the greater difficulties incidental to 
 the proof of the more atrocious and dangerous 
 forms of crime, as some writers on the civil 
 law have actually maintained. A distinguished 
 historical writer, with the strictest philosophical 
 truth, and with great felicity of illustration, 
 has thus denounced the doctrine under review : — 
 "The rules of evidence no more depend on the 
 magnitude of the interests at stake than the rules 
 of arithmetic. We might as well say that we have 
 a greater chance of throwing a size when we are 
 playing for a penny, than when we are playing for 
 a thousand pounds, as that a form of trial which 
 is sufficient for the purposes of justice, in a matter 
 affecting liberty and property, is insufficient in a 
 matter affecting life. Nay, if a mode of proceeding 
 be too lax for capital cases, it is, d priori, too lax 
 for all others ; for in capital cases the principles of 
 human nature will always afford considerable security. 
 No judge is so cruel as he who indemnifies himself 
 for scrupulosity in cases of blood, by license in 
 affairs of smaller importance. The difference in 
 tale on the one side far more than makes up for 
 the difference in weight on the other " {d). 
 
 [d) Macaulay's Essays: " Hallam's Constitutional History." Ed. 
 Longmans', 1852, vol. i. p. 143. See, however, p 267, siipra^ note («)»
 
 AMERICAN NOTES. 
 
 [Note to Chapter VI.] 
 
 Clear Proof of Fads Required. 
 
 "The several circumstances upon which conclusion depends 
 must be fully established by proof. They are facts from which 
 the main fact is to be inferred ; and they are to be proved by 
 competent evidence, and by the same weight and force of evi- 
 dence, as if each one were itself the main foct in issue. Under 
 this rule, every circumstance relied upon as material is to be 
 brought to the test of strict proof; and great care is to be taken 
 in guarding against feigned and pretended circumstances, which 
 may be designedly contrived and arranged, so as to create or di- 
 vert suspicion and prevent the discovery of the truth." Com. v. 
 Webster, 5 Cush. 295-317, 
 
 Subsidiary Facts — Links in Chain. 
 
 Where the facts from which the guilt of the defendant is to be 
 inferred actually depend one upon the other as do the links in a 
 chain ; where the failure of any one destroys the value of r.il 
 the rest, — each one must be proved beyond a reasonable duubt, 
 but not otherwise. State v. McKee (Utah), 53 Pac. 77?. 
 
 It is the guilt of the accused that must be established beyond 
 a reasonable doubt, and not every subsidiary or collateral fact 
 involved. Williams 7^ People, 166 111. 132 ; Hankz'. State (Ind.), 
 46 N. E. 127 ; Bradshaw v. State, 17 Neb. 147 ; Houser v. State, 
 58 Ga. 78; State v. Hayden, 45 Iowa, 11 ; Lackey v. State, 67 
 Ark. 416, 
 
 Each fact essential to the inference of guilt must be proved 
 beyond any reasonable doubt, but not each fact that is not thus 
 essential. It is enough if the facts as a whole exclude any rea- 
 sonable conclusion, except that of the defendant's guilt. They 
 must, as a whole, convince beyond any reasonable doubt. State 
 V. Rome, 64 Conn. 329 ; Gavin v. State (Fla.), 29 So. 405.
 
 2/2 ^ AMERICAN NOTES. 
 
 *' Circumstantial evidence may be of two kinds, consisting 
 either of a ninnber of consecutive links, each depending upon 
 the other, or a number of independent circumstances all pointing 
 in the same direction. In the former case it is said that each 
 link must be complete in itself, and that the resulting chain cannot 
 be stronger than its weakest link. In the latter case the indi- 
 vidual circumstances are compared to the strands in a rope, 
 where no one of them may be sufficient in itself, but all to- 
 gether may be strong enough to prove the guilt of the defendant 
 beyond a reasonable doubt." State v. Austin (N. C), 40 S. E. 
 
 415. 
 
 Every fact that is essential to warrant an inference of guilt 
 must be proved beyond a reasonable doubt, but this is not true 
 of every fact that is offered. A fact may be proved merely be- 
 cause it tends to establish the guilt of the accused, and that guilt 
 may be sufficiently proved even though this fact never existed. 
 Hence, if this fact need not be shown at all, it certainly need not 
 be proved beyond a reasonable doubt. Bradshaw v^ State, 1 7 
 Neb. 147 (quoted in note to Chapter I.) ; People v. Willett, 105 
 Mich, no; People v. Hare, 57 Mich. 505. 
 
 It is not necessary that each circumstance in the chain be 
 proved beyond a reasonable doubt. Breck v. State, 4 Ohio Circ. 
 Ct. 160, 21 Weekly Law Bulletin, 204. 
 
 Bu7-de?i on One Asserting. 
 
 " Whoever desires any Court to give judgment as to any legal 
 right or liability dependent on the existence or non-existence of 
 facts which he asserts or denies to exist, must prove that those 
 facts do or do not exist." Stephen's Dig. Evid., Art. 93. 
 
 Best Evide7ice Rule. 
 
 Greenleaf states the rule as follows : " A fourth rule which 
 governs in the production of evidence is that which requires the 
 best evidence of which the case in its nature is susceptible. This 
 rule does not demand the greatest amount of evidence which can 
 possibly be given of any fact ; but its design is to prevent the in- 
 troduction of any which from the nature of the case supposes that 
 better evidence is in the possession of the party. It is adopted 
 for the prevention of fraud ; for when it is apparent that better
 
 AMERICAN NOTES. 2/2 C 
 
 evidence is withheld, it is fair to presume that the party Iiad 
 some sinister motive for not producing it, and that, if offered, his 
 design would be frustrated. The rule thus becomes essential to 
 the pure administration of justice. In requiring the production 
 of the best evidence applicable to each particular fact, it is meant 
 that no evidence shall be received which is merely substitutionary 
 in its nature, so long as the original evidence can be had. The 
 rule excludes only that evidence which itself indicates the exist- 
 ence of more original sources of information. But where there is 
 no substitution of evidence, but only a selection of weaker instead 
 of stronger proofs, or an omission to supply all the proofs capable 
 of being produced, the rule is not infringed." Greenleaf on Evid., 
 i6th ed., § 82. 
 
 But the application of the rule in this place and of the phrase 
 " best evidence " is criticised by later authorities. The editor 
 of the 1 6th edition remarks : 
 
 "That phrase, as already explained, is of no service as a con- 
 crete rule for dealing with a given piece of evidence ; it is used 
 to describe loosely the general policy underlying certain concrete 
 rules, which, however, are entirely independent of each other, in 
 history and in theory, and must be discriminated." Greenleaf 
 on Evid., 1 6th ed., § 97 a. 
 
 The editor, Professor Wigmore, then goes on to say that the 
 underlying concrete rules above referred to are the Parol Evi- 
 dence rule governing the proof of the contents of a writing, the 
 Hearsay rule excluding hearsay because evidence on oath and 
 under cross-examination is better, the Attesting Witness rule, 
 supposed rules requiring eye-witnesses before others, and rules 
 requiring the official reports and records. 
 
 Also in Thayer's Prelim. Treatise on Evidence it is said : 
 
 [The rule] " is accompanied now with so many explanations 
 and qualifications as to indicate the need of some simpler and truer 
 statement, which should exclude any mention of this as a work- 
 ing rule of our system. Indeed, it would probably have dropped 
 naturally out of use long ago if it had not come to be a con- 
 venient, short description of the rule as to proving the contents 
 of a writing. Regarded as a general rule, the trouble with it is 
 that it is not true to the facts, and does not hold out in its appli- 
 cation ; and in so far as it does apply, it is unnecessary and un- 
 instructive. It is roughly descriptive of two or three rules which
 
 2']2 d AMERICAN NOTES. 
 
 have iheir own reasons and their own name and place, and are 
 well enough known without it." 
 
 "One of the general rules of evidence of universal application 
 is that the best evidence of the disputed facts must be produced 
 of which the nature of the case will admit. This rule, speaking 
 technically, applies only to the distinction between primary and 
 secondary evidence ; but the reason assigned for the a])plication 
 of the rule in a technical sense is equally applicable, and is fre- 
 quently applied, to the distinction between the higher and inferior 
 degrees of proof, speaking in a more general and enlarged sense 
 of the terms." Clifton v. U. S., 4 How. 247. 
 
 Testimony as to the ownership of a stolen animal, which in 
 itself shows that there is better evidence not produced, is objec- 
 tionable. Butler V. State, 3 Tex. App. 48. 
 
 A witness may testify from memory the amount of goods stolen, 
 even though the way-bills would show the exact amount stored in 
 the depot. Davis v. State (Ga.), 32 S. E. 158. 
 
 Proof of Former Testimony. 
 
 Oral evidence of what a witness swore to at an inquest is the 
 best evidence obtainable when what the witness said was not re- 
 duced to writing. Nelson v. State, 32 Ark. 192 ; Lyons v. People, 
 137 111. 602 ; Brown v. State, 71 Ind. 470. 
 
 But when a record of the evidence was made in regular manner 
 at the inquest, it must be produced. Robinson v. State, 87 Ind. 
 292 ; State v. Zellers, 7 N. J. L. 220. 
 
 Weak Witnesses. 
 
 The rule requiring the best evidence refers to quality and not 
 to quantity, but does not exclude a weak witness merely because 
 a strong one might have been produced. Richardson v. Milburn, 
 17 Md. 67. 
 
 Any one who saw the fact may testify, though one not called 
 might be a better witness than the one testifying. Richardson v. 
 Milburn, 17 Md. 67; Canfield v. Johnson, 144 Pa. 61. 
 
 Direct Evidence Preferred to Circumsttntial. 
 Where direct evidence can be had there should be no con- 
 viction on circumstantial evidence alone. Chi.olm v. State, 45 
 Ala. 66 ; Terr. . Hanna, 5 Mont. 248.
 
 AMERICAN NOTES. 272 e 
 
 At least the absence of such direct evidence should be ac- 
 counted for after reasonable effort to obtain it. Porter v. State, 
 I Tex. App. 394. 
 
 And it is a sufficient explanation that the witnesses are without 
 the State. Scott v. State, 19 Tex. App. 325. 
 
 Where a certain person witnessed the perpetration of a crime, 
 a conviction will not be sustained where such person was not 
 called as a witness, and the failure to call him is not satisfactorily 
 accounted for. Terr. v. Hanna, 5 Mont. 2 48. 
 
 Presumption from Failure to Produce. 
 
 The rule that where a party does not produce evidence which 
 is in his power to produce, the jury is authorized to conclude that 
 it would be damaging to such party, is not the same thing as the 
 rule requiring the best evidence. For a discussion of this rule, 
 see Chapter III. and note. 
 
 Proving a fact by inferior evidence when better evidence is in 
 the possession of the party warrants an inference that the latter 
 would not be in favor of his contention. Insur. Co. v. Evanns, 
 9 Md. I. 
 
 Facts Proved not Consistent with Innocence in General. 
 
 " Where a criminal charge is to be proved by circumstantial 
 evidence, the proof ought to be not only consistent with the 
 prisoner's guilt, but inconsistent with any other rational con- 
 clusion." Greenleaf on Evid., § 34. 
 
 Chief Justice Shaw, in Com. v. Webster, 5 Cush. 295, at page 
 313, says: "The common law appeals to the plain dictates of 
 common experience and sound judgment ; and the inference to 
 be drawn from the facts must be a reasonable and natural one, 
 and, to a moral certainty, a certain one. It is not sufficient that 
 it is probable only ; it must be reasonably and morally certain." 
 
 In State v. Hill, 65 Mo. 84, the following instruction was ap- 
 proved : " The jury are instructed that they may from circum- 
 stantial evidence alone find the defendant guilty, when the facts 
 established are inconsistent with any other theory than that of his 
 guilt, but in order to find the defendant guilty from circumstantial 
 evidence the facts proven must be wholly inconsistent with the 
 innocence of the accused and incapable of explanation upon any
 
 272/ AMERICAN NOTES, 
 
 other reasonable hypothesis than that of his guilt ; and before the 
 jury can find the defendant guilty they must believe and find from 
 the evidence that tlie circumstances i)roven in the case are not 
 only inconsistent \vi:h the innocence of the accused and recon- 
 cilable only upon tiie ground of his guilt, but they must further 
 find that no satisfactory explanation of said circumstances has 
 been rendered by the evidence of the defendant." 
 
 In State r. Rollins, 113 N. C. 722, it was held no error to re- 
 fuse the following instruction : " If there is a reasonable hypothesis, 
 supported by the evidence, which is consistent with the prisoner's 
 innocence, then it is the duty of the jury to acquit." This would 
 seem to be contrary to the rule of the text. 
 
 AH Reasonable Hypotheses Other than Guilt Must be 
 Excluded. 
 
 All other reasonable hypotheses than the guilt of the accused 
 must be excluded by the evidence to a moral certainty. Morgan 
 V. State (Neb.), 71 N. W. 788; Bryant v. State (Ala.), 23 So. 
 40; State V. Matthews, 66 N. C. 106. And the proof need not 
 be absolutely incompatible with other hypotheses. Mitchell v. 
 State (Ala.), 22 So. 71 ; James v. State, 45 Miss. 572. 
 
 Evidence that does not exclude every other reasonable infer- 
 ence except the guilt of the accused is not sufficient to sustain a 
 conviction (People v. Nelson, 85 Cal. 421 ; State v. Johnson, 
 19 Iowa, 230; Kennedy v. State, 31 Fla. 428; State v. Hunter, 
 50 Kan. 302 ; People v. Foley, 64 Mich. 148) ; but it need not 
 exclude every other possible hypothesis. People v. Ward, 105 
 Cal. 335 ; People v. Murray, 41 Cal. 66 ; King v. State (Ala.), 
 25 So. 178. 
 
 A conviction cannot be sustained where all the circumstances 
 implicating the defendant in a homicide are entirely consistent 
 with his innocence and his abandonment of a previous expressed 
 intention to kill. Fuller v. State, 112 Ga. 539. 
 
 In Gilmore v. State (Tex.), 13 S. W. 646, where the defend- 
 ant was charged with horse-stealing, a conviction was not sustained 
 because none of the circumstances proved were inconsistent with 
 the defendant's innocence. 
 
 The Court will instruct that if the circumstances are reconcil- 
 able with innocence there can be no conviction. Moore v. State,
 
 AMERICAN NOTES. 2/2 g 
 
 2 Ohio St. 500. A mere strong probability is not enough. If 
 the facts are fairly to be reconciled on the theory of innocence 
 there is a reasonable doubt. Clark v. State, 12 Ohio, 483, 495. 
 
 Where defendant charged with arson had advised one having 
 hay in the barn to take it out, because something was liable to 
 happen, and several months before had advised one living close 
 by to insure her furniture, it was held that these facts were as 
 consistent with innocence as with guilt. People v. Doneburg, 64 
 N. Y. Supp. 438. 
 
 Incompatibility of Some One Circumstance with Guilt. 
 
 Where any fact established is wholly incompatible with the 
 inference of the defendant's guilt, he should be acquitted. U. S. 
 V. Reder, 69 Fed. Rep. 965 ; but see State v. Johnson, 37 Minn. 
 493; and People v. Willett, 105 Mich. no. 
 
 "The next rule to which I ask attention is, that all the facts 
 proved must be consistent with each other, and with the main 
 fact sought to be proved. When a fact has occurred, with a 
 series of circumstances preceding, accompanying, and following 
 it, we know that these must all have been once consistent with 
 each other ; otherwise the fact would not have been possible. 
 Therefore, if any one fact necessary to the conclusion is wholly 
 inconsistent with the hypothesis of the guilt of the accused, it 
 breaks the chain of circumstantial evidence upon which the infer- 
 ence depends ; and, however plausible or apparently conclusive 
 the other circumstances may be, the charge must fail." Com. v. 
 Webster, 5 Cush. 295, 318. 
 
 Absolute Impossibility of Innocence. 
 
 It need not be proved to be absolutely impossible that any 
 other person than the defendant could have committed the crime 
 charged. Com. v. Leach, 156 Mass. 99. 
 
 The evidence need not establish the guilt of the accused to 
 the "exclusion of every possibility of innocence." Burks v. State 
 (Ala.), 23 So. 530. 
 
 It is not error to refuse an instruction that the facts and cir- 
 cumstances proved must be " absolutely incompatible upon any 
 reasonable hypothesis with the innocence of the accused, and 
 incapable of explanation upon any reasonable hypothesis other
 
 272 h AMERICAN NOTES. 
 
 than that of the guilt of tlie accused." Horn v. State (Wyo.), 73 
 Pac. 705. 
 
 Burden of Proof in Criminal Cases — General Authorities. 
 
 Miles V. U. S., 103 U. S. 304; Nevling v. Com., 98 Pa. St. 
 322; People V. Paulsell, 115 Cal. 6; Morgan v. State, 48 Ohio 
 St. 371 ; Wade v. State, 71 Ind. 535 ; Jameson v. People, 145 111. 
 357; Porterfield v. Com., 91 Va. 801; People v. Ezzo, 104 
 Mich. 341 ; Com. v. Goodwin, 14 Gray (Mass.), 55 ; Com. v. 
 Kimball, 24 Pick. (Mass.) 366 ; Com. v. Hardiman, 9 Gray 
 (Mass.), 136; Com. v. McKie, i Gray (Mass.), 61 ; State v. 
 Schweitzer, 57 Conn. 539 ; Hoyt v. Danbury, 69 Conn. 348. 
 
 The presumption that life continues relieves the State of show- 
 ing by positive evidence that life continued up to the moment of 
 the fatal blow. Com. v. Harman, 6 Pitts. Leg. J. 120. 
 
 The burden of proving that a confession is voluntary is on 
 the State. State v. Young, 67 N, J. L. 223 ; Roesel v. State, 62 
 N. J. L. 216 ; Nicholson v. State, 38 Md. 140. 
 
 Guilt to be Proved beyond a Reasonable Doubt. 
 
 " If the commission of a crime is directly in issue in any pro- 
 ceeding, criminal or civil, it must be proved beyond reasonable 
 doubt. The burden of proving that any person has been guilty 
 of a crime or wrongful act is on the person who asserts it, whether 
 the commission of such act is or is not directly in issue in the 
 action." Stephen's Dig. Evid., Art. 94. 
 
 The Court, where no requests were made by the prisoner, 
 charged that it was incumbent upon the State to satisfy the jury 
 beyond a reasonable doubt of the guilt of the accused, but 
 omitted to say that the accused was presumed to be innocent 
 until proven guilty, and omitted also to define " reasonable doubt." 
 Held^ that the defendant had no just ground for complaint. 
 State V. Smith, 65 Conn. 283. 
 
 Proof beyond a Reasonable Doicbt Defined. 
 
 State V. Williamson, 22 Utah, 248; State v. Davis (Del.), 50 
 Atl. 99. 
 
 Where the Court charged that a reasonable doubt was one that 
 you can give a reason for, not captious or whimsical doubt, there
 
 AMERICAN NOTES. 2/2 z 
 
 was held to be error. Morgan v. State, 48 Ohio St. 371. Proof 
 beyond a reasonable doubt is stronger than clear proof. Farrer 
 v. State, 2 Ohio St. 54, 77. 
 
 " Vou have been told that to doubt of the prisoner's guilt is to 
 acquit her. But a doubt, to work an acquittal, must be serious 
 and substantial — not the mere possibility of a doubt. If the 
 evidence convince you of guilt beyond a reasonable doubt, you 
 are bound to convict. You are the judges of its effect ; and if 
 you can reconcile it to any reasonable hypothesis of innocence, 
 you may acquit ; if not, you are bound to say so." Charge of 
 Gibson, C. J., in Cora. v. Harman, 4 Pa. 269, 274. 
 
 " Another rule is, that the circumstances taken together should 
 be of a conclusive nature and tendency, leading on the whole to 
 a satisfactory conclusion, and producing in effect a reasonable and 
 moral certainty, that the accused, and no one else, committed the 
 offence charged. It is not sufficient that they create a proba- 
 bility, though a strong one ; and if, therefore, assuming all the 
 facts to be true which the evidence tends to establish, they may 
 yet be accounted for upon any hypothesis which does not include 
 the guilt of tlie accused, the proof fails. It is essential, therefore, 
 that the circumstances taken as a whole, and giving them their 
 reasonable and just weight and no more, should to a moral cer- 
 tainty exclude every other hypothesis. The evidence must estab- 
 lish the corpus delicti, as it is termed, or the offence committed as 
 charged ; and in case of homicide, must not only prove a death 
 by violence, but must, to a reasonable extent, exclude the hypothe- 
 sis of suicide, and a death by the act of any other person. This 
 is to be proved beyond reasonable doubt. 
 
 "Then what is reasonable doubt? It is a term often used, 
 probably pretty well understood, but not easily defined. It is not 
 mere possible doubt ; because everything relating to human affairs 
 and depending on moral evidence is open to some possible or 
 imaginary doubt. It is that state of the case which, after the 
 entire comparison and consideration of all the evidence, leaves 
 the minds of jurors in that condition that they cannot say they 
 feel an abiding conviction, to a moral certainty, of the truth of 
 the charge. The burden of proof is upon the prosecutor. All 
 the presumptions of law independent of evidence are in favor of 
 innocence ; and every person is presumed to be innocent until he 
 is proved guilty. If upon such proof there is reasonable doubt
 
 2727 AMERICAN NOTES. 
 
 remaining, the accused is entitled to the benefit of it by an 
 acquittal. For it is not sufficient to establish a probability, though 
 a strong one arising from the doctrine of chances, that the fact 
 charged is more likely to be true than the contrary ; but the evi- 
 dence must establish the truth of the fact to a reasonable and 
 moral certainty ; a certainty that convinces and directs the under- 
 standing, and satisfies the reason and judgment, of those who are 
 bound to act conscientiously upon it. This we take to be proof 
 beyond reasonable doubt ; because the law, wliich mostly depends 
 upon considerations of a moral nature, should go further than 
 this, and require absolute certainty, it would exclude circumstan- 
 tial evidence altogether." Com. v. Webster, 5 Cush. 295, 319. 
 
 The corpus delicti must be established beyond a reasonable 
 doubt, but not by " overwhelming proof." Zell v. Com., 94 Pa. 
 258. 
 
 Moral Certainty Required. 
 
 Absolute certainty is not essential to conviction, but moral 
 certainty is. Otmer v. People, 76 111. 149. 
 
 Doubt on the Part of One Juror. 
 
 The fact that one of the jurors has a reasonable doubt does not 
 invalidate a verdict in case he yields to the other eleven. Pickens 
 V. State (Ala.), 22 So. 551; Davis v. State (Neb.), 70 N. W. 
 984. 
 
 The proper charge is that the jury, and not each juror, should 
 be convinced beyond reasonable doubt. Davis v. State, 63 Ohio 
 St. 173, 10 Circ. Dec. 73S. 
 
 Atfiount of Evidence Required to Exclude Reasonable Doubt. 
 
 The defendant cannot be convicted of larceny upon evidence 
 that merely raises a suspicion of his guilt. Munroe v. State, 1 1 1 
 Ga. 831. 
 
 Evidence that the defendant was seen driving a cow, like the 
 one he is alleged to have stolen, toward his slaughter pen, and 
 that her hide and horns were found there later, is sufficient to 
 sustain a conviction for larceny. Turner v. State, 1 1 1 Ga. 217. 
 
 In Tilley v. Com., 90 Va. 99, the Court held that the following 
 evidence did not establish the defendant's guilt beyond a reason-
 
 AMERICAN NOTES. 2/2 k 
 
 able doubt. The defendant and the deceased, a young woman, 
 were seen to enter certain woods together, later a shot was heard, 
 and some time after the defendant was seen alone on a road not 
 far away. The body of the young woman was found with a bullet- 
 hole in her head, and the defendant had had a pistol which might 
 have inflicted the wound. A purse with $30, which the deceased 
 had had, was gone. The defendant was in danger of lynching, 
 and fled, concealing himself in another State for three years. 
 When arrested he showed no anxiety and refused to escape when 
 opportunity offered. The shoes worn by him at the time could 
 not have made certain tracks about the scene of the crime. He 
 had no need whatever of money. 
 
 If there is doubt as to which of two persons struck the blow, 
 and both cannot be guilty, the jury should acquit. State v. Goode 
 (N. 0,43 S.E. 502. 
 
 It is not necessary to compare circumstantial evidence in weight 
 as equal to that of one credible witness or more ; it is sufficient 
 that it demonstrates the guilt of the accused beyond a reasonable 
 doubt. Faulk v. State, 52 Ala. 415 ; State v. Coleman, 22 La. 
 Ann. 455. 
 
 Particular Facts to be Proved. 
 
 Where defendant is charged with causing the death of deceased 
 by procuring an abortion, it must be proved beyond a reasonable 
 doubt that the deceased was pregnant. It need not be absolutely 
 certain. State v. Alcorn (Idaho), 64 Pac. 1014. 
 
 The accused must be identified as the criminal beyond a rea- 
 sonable doubt. Patton v. State, 117 Ga. 230. 
 
 The rule requiring proof beyond a reasonable doubt applies also 
 to the proof of the degree of a homicide. Terr. v. Manton, 7 Mont. 
 162 ; State v. Agnew, 10 N. J. L. 165 ; Blake v. State, 3 Tex. 
 App. 581 ; Tate v. State, 35 Tex. Cr. Rep. 231. 
 
 Malice and deliberation must be proved beyond a reasonable 
 doubt to sustain a conviction for murder in the first degree. State 
 V. Greenleaf, 71 N. H. 606. 
 
 Where the stomach of one deceased has been examined by a 
 chemist to detect poison as the cause of death, it must be shown 
 beyond a reasonable doubt that the stomach examined was that of 
 the deceased in question, and that no foreign substance was intro- 
 duced into it between the time of death and the examination. But
 
 2/2 / AMERICAN NOTES 
 
 it need not have been kept under lock and key or have been kept 
 sealed up. Slate v. Cook, 17 Kan. 392. 
 
 In prosecutions for seduction the good repute of the prosecu- 
 trix for chastity must be established beyond a reasonable doubt. 
 State V. Brown, 64 N. J. L. 414; Zabriskie v. State, 43 N. J. L. 
 646. 
 
 Where defendant in possession of money belonging to anotlier 
 alleged that he found it and intended to return it, the prosecution 
 must disprove such explanation beyond a reasonable doubt. White 
 V. State, 28 Tex. App. 71. 
 
 The burden of proving, in murder, that the deceased did not 
 commit suicide is on the prosecution. Persons v. State, 90 Tenn. 
 291. 
 
 In Larceny. 
 
 The identity of the defendant charged with larceny must be 
 proved, not by a preponderance of the evidence, but beyond a 
 reasonable doubt. State v. McCi'acken, 66 Iowa, 569. 
 
 The property alleged to have been stolen must be identified as 
 belonging to some one other than the accused beyond a reason- 
 able doubt. State v. Hill, 96 Mo. 357. 
 
 To justify a conviction for grand larceny the value of the goods 
 taken must be proved beyond a reasonable doubt. State v. Wood, 
 46 Iowa, 116. 
 
 Prima Facie Case — Burden oti Defe7idant. 
 
 Where the defendant inflicted a fatal wound with a deadly 
 weapon previously in his possession with practically no provo- 
 cation, d. prima facie case is established, and the burden of pro- 
 ducing evidence of mitigating circumstances is on the defendant. 
 Horton v. Com., 99 Va. 848. 
 
 Guilt must be proved beyond a reasonable doubt, and the bur- 
 den of such proof is in the State throughout the trial ; but when 
 the homicide has been shown with no justifying or mitigating cir- 
 cumstances, the defendant has at least the burden of producing 
 sufficient evidence of such circumstances to raise a reasonable 
 doubt. People v. Callaghan, 4 Utah, 49 ; People v. Arnold, 15 
 Cal. 476. 
 
 Where the body is found and identified, if the defendant claims 
 that the man alleged to have been murdered is still alive, it de-
 
 AMERICAN NOTES. 272 1H 
 
 volves upon him to show it by satisfactory evidence. Com. v. 
 Webster, 5 Cush. 295, 52 Am. Dec. 711; State z;. Vincent, 24 
 Iowa, 570, 95 Am. Dec. 753. 
 
 Where the kiUing has been proved beyond a reasonable doubt 
 and the evidence of the State indicates no circumstances in miti- 
 gation, the defendant has the burden of producing sufficient evi- 
 dence of such circumstances to raise a reasonable doubt as to his 
 guilt. People v. Matthai, 135 Cal. 442. 
 
 Exculpatory Facts. 
 
 The defendant is not required to prove exculpatory facts beyond 
 a reasonable doubt (Dyson ?'. State, 13 Tex. App. 402) ; nor even 
 by a preponderance of the evidence. Tweedy v. State, 5 Iowa, 
 433 ; Howell v. State (Neb.), 85 N. W. 2S9. 
 
 The defendant, charged with larceny of goods, recently stolen 
 and found in his possession, need not rebut the presumption aris- 
 ing therefrom by a preponderance of the evidence. He need only 
 raise a reasonable doubt. State v. Richart, 57 Iowa, 245 ; Hyatt 
 V. State (Tex.), 25 S. W. 291. 
 
 Proof of good character alone may be sufficient to raise a rea- 
 sonable doubt. Com. 7,'. Rargar, 2 Law. T. (n. s.) 37; Becker 
 7'. Com., 9 Atl. 510 ; Com. v. Shaub, 5 Lane. Bar, 121 ; Com. v. 
 Harmon, 199 Pa. 521. 
 
 Mitigating Circumstances. 
 
 It is undoubtedly better use of the term to say that the burden 
 of proof rests throughout the trial on the prosecution to prove the 
 fact that a crime has been commitlcd and that the defendant is 
 guilty ; this would make it the duty of the prosecution to estab- 
 lish the absence of circumstances of mitigation or justification. 
 But when the State has proved a homicide and the fact that the 
 defendant did the act producing death, and none of the circum- 
 stances proved indicate self-defence, the burden of producing 
 evidence of such circumstances is on the defendant. It is often 
 said, however, that the burden of proof is on the defendant to 
 establish self-defence. Miller v. State, 107 Ala. 40 ; State v. 
 Snelbaker, 8 Ohio Dec. 466. 
 
 The burden of proving mitigating circumstances is not on the 
 defendant, although if tlie evidence of the State shows no such
 
 2/2 « AMERICAN NOTES. 
 
 circumstances the burden of producing evidence of them is on 
 the defendant. Alexander v. People, 96 111. 96 ; People v. Cal- 
 laghen, 4 Utah, 49 ; Com. z/. Webster, 5 Cueh. 295, 52 Am. Dec. 
 711; McDaniel ?;. State, 8 Smedes & M. (Miss.) 401; Haw- 
 thorne 7'. State, 58 Miss. 778; People v. Hill, 49 Hun, 432 ; 
 People V. Downs, 56 Hun, 5 ; (ioodall v. State, i Ore. 333, 80 
 Am. Dec. 396 ; Richardson v. State, 9 Tex. .Ajjp. 612 ; Same v. 
 Same, 32 Tex. Cr. Rep. 524, 24 S. W. 894 ; State v. Tabor, 95 
 Mo. 585 (where it is said that the burden of proof is then on the 
 defendant) ; State v. Bertrans, 3 Ore. 61 (same) ; Gibson z;. State, 
 89 Ala. 121 (same) ; State v. Keith, 9 Nev. 15 (same) ; State v. 
 Mazon, 90 N. C. 676 (same) ; Terr. v. Mc Andrews, 3 Mont. 
 15S ; and Terr. v. Rowand, 8 Mont, iio (same under statute). 
 
 The burden is on the prosecution to show the killing, the 
 malice, and the lack of justification or excuse. People v. Downs, 
 56 Hun, 5 ; Goodall v. State, i Ore. 333, 80 Am. Dec. 396 ; 
 Jones V. State, 13 Tex. App. i. 
 
 'J^he jury may be charged that the evidence of the State 
 may be such as to put the burden of producing evidence of 
 justification or mitigation upon the defendant. Bell v. State, 
 69 Ga. 752. 
 
 Where the evidence of the State indicates that the homicide 
 may be manslaughter instead of murder, the jury should so find 
 without any evidence on the part of the accused (Reid v. State, 
 50 Ga. 556) ; and in such case the burden of proving the miti- 
 gating circumstances is not on the accused. Tweedy v. State, 
 5 io^va, 433. 
 
 It is generally held to be error to instruct the jury that when 
 a homicide has been proved the burden of proving mitigating 
 circumstances is on the accused, unless the charge further states 
 " unless they appear from the evidence proved against him." 
 McDaniel v. State, 8 Smedes & M. (Miss.) 401, 47 Am. Dec. 93 ; 
 Hawthorne 57. State, 58 Miss. 778; Com. v. Webster, 5 Cush. 
 295 ; Murphy v. People, 37 111. 447 ; contra, Cathcart v. Cora., 
 37 Pa. 108. 
 
 In Trumble v. Terr., 3 Wyo. 280, 6 L. R. A. 384, it was held 
 error to charge the jury that after the killing is proved with no 
 evidence of mitigating circumstances, " the burden then falls upon 
 the defendant to show either that such killing was justifiable or
 
 AMERICAN NOTES. 2/2 <7 
 
 excusable, or that it was attended by such facts as would limit 
 such killing to the crime of manslaughter." 
 
 Same — Bufden Said to Be on Defendant. 
 
 Cases where it is said that the burden is on defendant to 
 show justification, or mitigating circumstances, or accident in homi- 
 cide. State V. Jones, 98 N. C. 651 ; State v. Mazon, 90 N. C. 
 676 ; Terr. v. Rowand, 8 Mont, iio; State v. Rollins, 113 N. C. 
 722 ; Lewis v. State, ^^ Ala. 1 1 ; Lewis v. State, 90 Ga. 95 ; State 
 v. Bonds, 2 Nev. 265. 
 
 The burden is said not to be on the State to show that there was 
 no justification for a homicide. State v. Brown, 64 Mo. 367. 
 
 Burden is on the accused to show that he killed the deceased 
 to prevent him from committing murder. Mitchell v. State, 22 
 Ga. 211, 68 Am. Dec. 493. 
 
 Where defendant is charged with manslaughter by producing 
 an abortion, the burden of proving that the abortion was neces- 
 sary to preserve life is on the defendant. People v. McGonegal, 
 
 62 Hun, 622. 
 
 The defendant has the burden of proving by a preponderance 
 of the evidence that a homicide was justifiable. People v. Raten, 
 
 63 Gal. 421 ; People v. Tidwell, 4 Utah, 506, 12 Pac. 61 (under 
 statute). 
 
 The Galifornia Code places the burden of proving mitigating or 
 justifying circumstances on the defendant in certain cases. People 
 V. Tarm Poi, 86 Cal. 225 ; but see People v. Powell, 87 Cal. 348, 
 where it is held that the defendant need not show by a prepon- 
 derance of the evidence that a homicide was justifiable. And see 
 also People v. Lemperle, 94 Cal. 45. 
 
 Where the evidence of the State indicates murder, the burden 
 of proving mitigating circumstances, not by a preponderance of 
 the evidence, but to the satisfaction of the jury, is put on the 
 accused. A doubt as to such mitigating circumstances is to be 
 resolved against him. State v. Byers, 100 N. C. 512. 
 
 Defendant must show affirmatively the homicide was exgusable 
 or accidental or not malicious unless it already appears to be so 
 from the evidence of the prosecution. Dixon v. State, 13 Fla. 
 636 ; ]\Iurphy v. People, 37 111. 447. 
 
 Homicide is presumed to be murder, and the burden of show-
 
 2/2/ AMERICAN NOTES. 
 
 iiig it to be a crime of less degree is on the accused. Com. 
 7'. Drum, 5S Pa. 9. 
 
 Mitigating circumstances need not be established beyond a 
 reasonable doubt, but the jury must be satisfied they are true. 
 State V. KUick, 60 N. C. 450, 86 Am. Dec. 442. 
 
 Insanity — Burden on Defendant to Prove beyond 
 Reasonable Doubt. 
 
 Where insanity is set up as a defence, most courts put the 
 burden of proving it upon the defendant. A few require him 
 to prove it beyond a reasonable doubt. State v. De Ranee, 34 La. 
 Ann. 1 86, 44 Am. Rep. 426. 
 
 Insanit)' — Preponderance Required of Dcfendaiit. 
 
 Many other courts require the defendant to establish his insan- 
 ity by a preponderance of the evidence, or to the satisfaction of 
 the jury. People v. McCann, 16 N. Y. 58, 69 Am. Dec. 642 ; 
 State V. Adin, 7 Ohio Dec. 25 ; State v. Lawrence, 57 Me. 574 ; 
 State V. Huting, 21 Mo. 464 ; Graves v. State, 45 N. J. L. 203, 
 347 ; Pannell v. Com., 9 Lane. Bar (Pa.), 82 ; Boswell v. Com., 
 20 Gratt. (Va.) 860. 
 
 Burden of proving insanity by a fair preponderance of the evi- 
 dence is on the accused (Com. v. Wireback, 190 Pa. 138 ; Com. 
 V. Bezek, 168 Pa. 603; Com. z^. Heidler, 191 Pa. 375 ; Ortwein 
 V. Com., 76 Pa. 414; Lynch v. Com., 77 Pa. 205 ; Com. v. Kil- 
 patrick, 204 Pa. 21S) ; but he need not prove il "beyond a rea- 
 sonable doubt." Meyers v. Com., 83 Pa. 131. 
 
 On an indictment for crime, the defence being insanity, such 
 insanity must be proved by a preponderance of evidence, in order 
 to obtain an acquittal, Kelch v. State, 55 Ohio St. 146. 
 
 The absence of motive raises no presumption of insanity. Car- 
 ter V. State, 12 Tex. 500. 
 
 The burden of proving insanity as a defence is on the accused, 
 because of the presumption of sanity. McKenzie v. State, 26 Ark. 
 
 334. 
 
 Lisanity as a defence must be affirmatively proved ; the jury 
 must be satisfied that the defendant was not sane. State v. Law- 
 rence, 57 Me, 574 ; State v. De Ranee, 34 La. Ann. 1S6, 44 Am.
 
 AMERICAN NOTES. 2/2 ^ 
 
 Rep. 426 ; Carter v. State, 12 Tex. 500, 62 Am. Dec. 539 ; State 
 V. Baber, 11 Mo. App. 5S6. 
 
 Insanify — Bun/en on State. 
 
 And many courts leave the burden of proving sanity upon the 
 prosecution and hold that the jury should acquit the defendant if 
 they have a reasonable doubt of his sanity. Polk v. State, 19 Ind. 
 170, 81 Am. Dec. 382 ; State v. Crawford, 11 Kan. 32 ; Ford v. 
 State, 73 Miss. 734, 35 L. R. A. 1 1 7 ; Dove v. State, 50 Tenn. 
 
 348. 
 
 The State does not have the burden of proving sanity beyond a 
 reasonable doubt. Craves v. State, 45 N. J. L. 203. 
 
 In State v. Crawford, 1 1 Kan. 32, it was held that the State must 
 establish defendant's sanity beyond a reasonable doubt. 
 
 Self-Defence — Prcponderatice Required of Defendant. 
 
 There are many jurisdictions that require the defendant to 
 establish the fact that he acted in self-defence by a preponder- 
 ance of the evidence. This, of course, is putting the burden of 
 proof on him. U. S. v. Kan-gi-shun-ca, 3 Dak. 106; People 
 V. Schryver, 42 N. Y. i, i Am. Rep. 480; People v. Riordan, 
 117 N. Y. 71 ; Silvus V. State, 22 Ohio St. 90; State v. Bertrand, 
 3 Ore. 61 ; Slate v. Brown, 34 S. C. 41 ; State v. Jones, 20 \V. 
 Va. 764. 
 
 The burden of proving that the act was done in self-defence is 
 on the defendant (Silvus v. State, 22 Ohio St. 90; Roden v. 
 State, 97 Ala. 54; Smith v. State, 86 Ala. 28; Weaver v. State, 
 24 Ohio St. 584; Com. v. Drum, 58 Pa. 9), unless the evi- 
 dence of the vState has already brought out facts from which 
 the jury may infer self-defence. People v. Hong Ah Duck, 61 
 Cal. 387; De Arman v. State, 71 Ala. 351; Lyons v. People, 
 137 111. 602. 
 
 Self-defence must be established by the defendant by a pre- 
 ponderance of the testimony. State v. ^^'elch, 29 S. C. 4. 
 
 The State has not the burden of proving that the accused had 
 another means of escape from the deceased ; he must show that 
 he had none. Cleveland v. State, 86 Ala. i ; Stitt v. State, 91 
 Ala. 10, 24 Am. St. Rep. 853.
 
 2/2 r AMERICAN NOTES. 
 
 Self-Defence — Biiriien on State. 
 
 Logically it would seem that the defendant ought to be ac- 
 quitted if his evidence raises a reasonable doubt that he may have 
 acted in self-defence, and many auilioriiies so hold. Miller v. 
 State, 107 Ala. 40; State v. Porter, 34 Iowa, 131 ; McKenna v. 
 State, 61 Miss. 589 ; Tiffany v. Com., 121 Pa. 165. 
 
 The burden of proving that the accused was not acting in self- 
 defence is on the State (State v. Donahoe, 78 Iowa, 486 ; State 
 V. Dillon, 74 Iowa, 653 ; People v. Coughlin, 65 Mich. 704) ; and 
 in Same v. S-ime, 67 Mich. 466, it was held that the burden of 
 proof was upon the State to show not only that the act was not in 
 self-defence, but that the accused had no reasonable belief that 
 he was in great danger from the deceased. Gravely v. State, 38 
 Neb. 871 ; People v. Schryver, 42 N. Y. i, i Am. Rep, 480; 
 People V. Riordan, 50 Hun, 602; People v. Downs, 123 N. Y. 
 
 558. 
 
 The jury should not be instructed that the burden of showing 
 self-defence is on the accused when the evidence of the prosecu- 
 tion already tends to show it. People v. Elliott, 80 Cal. 296. 
 
 Where defendant killed deceased during a struggle, the burden 
 of proving that the act was not justifiable is on the State. State 
 V. Cross, 68 Iowa, 180. 
 
 The State must prove beyond a reasonable doubt that the 
 defendant did not act in self-defence. State v. Bone (Iowa), 87 
 N. W. 507. 
 
 There is no doubt that the defendant need not prove the fact 
 that he acted in self-defence beyond a reasonable doubt. People 
 V. Lee (Cal.), 8 Pac. 685 ; Wacaser v. People, 134 III. 438, 23 
 Am. St. Rep. 683 ; Schaffer v. State, 22 Neb. 557, 3 Am. St. Rep. 
 274 ; People v. Schryver, 42 N. Y. i, i Am. Rep. 480; State v. 
 Ariel, 38 S. C. 221 ; Cockrell v. Com., 95 Ky. 22. 
 
 Alibi — Burden of Proof. 
 
 A preponderance of evidence is not necessary of an alibi. The 
 burden of proof is not changed by such a defence. Walters v. 
 State, 39 Ohio St. 215 ; Morehead v. State, 34 Ohio St. 212. 
 
 Setting up an alibi as a defence does not change the burden of 
 proof. Fife v. Com., 29 Pa. 429 ; Briceland v. Com., 74 Pa. 463.
 
 AMERICAN NOTES. 2/2 J 
 
 As to the weight of evidence in cases where an ahbi is set up 
 Chief Justice Shaw says : "In the ordinary case of an alibi, when 
 a party charged with a crime attempts to prove that he was in 
 another place at the time, all the evidence tending to prove that 
 he committed the offence tends in the same degree to prove that 
 he was at the place when it was committed. If, therefore, the 
 proof of the alibi does not outweigh the proof that he was at the 
 place when the offence was committed, it is not sufficient." Com. 
 V. \Vebster, 5 Cush. 295, 324. 
 
 Various Facts — Burden on Defendant. 
 
 In rape, the burden is on the defendant to show that the girl is 
 not of good repute. Com. v. Allen, 135 Pa. 483. 
 
 In an action for selling goods without a licence, the burden is 
 on the defendant to show that he had one. Com. v. Brownbridge, 
 I Brewst. 399, s. c. 6 Phila. 318; Com. v. Dilbo, 29 Leg. Int. 
 150. 
 
 Before rules applicable to the corroboration of an accomplice 
 are applied, the defendant must show by a preponderance of the 
 evidence that the witness in question was an accomplice. State 
 V. Smith, 102 Iowa, 656, 665. 
 
 Burden is on defendant to show that the gun he aimed was not 
 loaded and that he knew it was not. Caldwell v. State, 5 Tex. 18. 
 
 Where a wound was given with murderous intent, the burden 
 of proving that death was due not to the wound but to neglect or 
 malpractice is on the defendant. State v. Briscoe, 30 La. Ann. 
 433 ; State v. Scott, 12 La. Ann. 274. But see McBeth v. State, 
 50 Miss. 81. 
 
 Defendant cannot mitigate his offence by laying the death of 
 deceased upon the misconduct or malpractice of the physicians 
 unless it is very clearly shown. State v. Scott, 12 La. Ann. 274. 
 The burden of proving such malpractice is on the defendant. 
 State V. Briscoe, 30 La. Ann. 433.
 
 CHAPTER VII 
 
 PROOF OF THE CORPUS DELICTI. 
 
 Section i. 
 
 general doctrine as to the proof of the 
 corpus delicti. 
 
 Every allegation of the commission by any person 
 of legal crime involves the establishment of two 
 distinct propositions ; namely, that an act has been 
 committed from which legal responsibility arises, and 
 that the guilt of such act attaches to a particular in- 
 dividual, though the evidence is not always separable 
 into distinct parts, or applicable to one only of those 
 propositions apart from the other. 
 
 Such a complication of difficulties occasionally 
 attends the proof of crime, and so many cases have 
 occurred of convictions for alleged offences whichhave 
 never existed, that it is a fundamental and inflexible 
 rule of legal procedure, of universal obligation, that 
 no person shall be required to answer an accusation, 
 or be involved in the consequences of guilt, without 
 satisfactory proof of the corpus delicti, either by direct 
 evidence or by irresistible grounds of presumption [a). 
 If it be objected that rigorous proof of the corpus 
 delicti is sometimes unattainable, and that the effect 
 of exacting it must be that crimes will occasionally 
 
 {a) Rex V. Burdett^ 4 B. and Aid. at p. 123. 
 C.E. T
 
 ?74 PROOF OF THE CORPUS DELICTI 
 
 pass unpunished, it must be admitted that such may 
 possibly be the result ; but, it is answered that, 
 where there is no proof, or, which is the same thing, 
 no sufficient legal proof of crime, there can be no 
 legal criminality. In penal jurisdiction there can be 
 no middle term ; the party must be absolutely and 
 unconditionally guilty or not guilty. Nor under 
 any circumstances can considerations of supposed 
 expediency ever supersede the immutable obligations 
 of justice ; and occasional impunity of crime is an 
 evil of far less magnitude than the conviction and 
 punishment of the innocent. Such considerations 
 of mistaken policy led some of the writers on the 
 civil and canon laws to modify their rules of evidence, 
 according to the difficulties of proof incidental to 
 particular crimes, and to adopt the execrable maxim, 
 that the more atrocious was the offence, the slighter 
 was the proof necessary ; in atrocissimis leviores 
 conjecturcB sufficmnt, et licet jiidici jura transgredi. 
 Such, indeed, is the logical and inevitable conse- 
 quence, when, from whatever motive, the plea of 
 expediency is permitted to influence judicial integrity. 
 The clearest principles of justice require, that what- 
 ever the nature of the crime, the amount and inten- 
 sity of the proof shall in all cases be such as to 
 produce the full assurance of moral certainty {b). 
 
 Section 2. 
 
 proof of the corpus delicti by circumstantiai, 
 
 evidence. 
 
 But it is clearly established, that it is not neces- 
 sary that the corpus delicti should be proved by 
 (^) See Ch, i. s. 3, p. 5, supra.
 
 BY CIRCUMSTANTIAL EVIDENCE. 275 
 
 direct and positive evidence, and it would be most 
 unreasonable to require such evidence. Crimes, and 
 especially those of the worst kinds, are naturally 
 committed at chosen times, and in darkness and 
 secrecy ; and human tribunals must act upon such 
 indications as the circumstances of the case present, 
 or society must be broken up. Nor is it very 
 often that adequate evidence is not afforded by 
 the attendant and surrounding facts, to remove all 
 mystery, and to afford such a reasonable degree of 
 certainty as men are daily accustomed to regard as 
 sufficient in the most important concerns of life : to 
 expect more would be equally needless and absurd. 
 
 In Burdett's case (c) this subject underwent much 
 discussion. The facts were that in 18 19 Sir Francis 
 Burdett published a letter in the newspapers to the 
 Electors of Westminster containing severe strictures 
 upon the behaviour of some troops at Manchester, 
 and calling a meeting at Westminster, presumably 
 to protest against the use of a standing army in 
 times of peace. The language was somewhat 
 violent, and contained the following words, which 
 would attract but little attention at the present day, 
 though quite sufficient to form the basis of an indict- 
 ment, for seditious libel in those days : — " What ! kill 
 men unarmed and unresisting ! and, gracious God, 
 women too, disfigured, maimed, cut down, and 
 trampled upon by dragoons ! " At the trial at 
 Leicester Assizes before Mr. Justice Best, the evi- 
 dence was that the letter was dated the 22nd of 
 August from Kirby Park in Leicestershire, had 
 
 (<r) 4 B. & Aid. 95. 
 
 T 2
 
 276 PROOF OF THE CORPUS DELICTI 
 
 been delivered in London by a friend of the 
 defendant's to one Brookes, who could not say for 
 certain whether it was delivered open or sealed, but 
 that it contained these words " Forward this to 
 Brookes," and had no trace of any seal or postmark. 
 It also appeared that the defendant was in Leicester- 
 shire on the 22nd of August, and the following day, 
 and did not leave the county until after the publica- 
 tion of the letter in the newspapers on the 25th of 
 August. The defendant admitted that he wrote the 
 letter. It was contended that there was no evidence 
 of publication in Leicestershire, but the learned 
 judge overruled the objection, and the jury convicted. 
 Upon an application for a nev/ trial, the court held 
 by a majority, that there was evidence of a publica- 
 tion in Leicestershire even if the letter had been 
 delivered sealed to the Post Office there ; but the 
 discussion turned chiefly upon whether publication 
 in Leicestershire could be pi'esztmed from the facts 
 proved in evidence, which were uncontradicted by 
 any evidence on the defendant's behalf. Mr. Justice 
 Best said, " When one or more things are proved 
 from which our experience enables us to ascertain 
 that another, not proved, must have happened, we 
 presume that it did happen, as well in criminal as in 
 civil cases. Nor is it necessary that the fact not 
 proved should be established by irrefragable in- 
 ference. It is enough if its existence be highly 
 probable, particularly if the opposite party has it in 
 his power to rebut it by evidence, and yet offers 
 none ; for then we have something like an admis- 
 sion that the presumption is just. It has been 
 solemnly decided, that there is no difference
 
 BY CIRCUMSTANTIAL EVIDENCE. 277 
 
 between the rules of evidence in civil and criminal 
 cases. If the rules of evidence prescribe the best 
 course to get at truth, they must be and are the 
 same in all cases and in all civilized countries. 
 There is scarcely a criminal case, from the highest 
 down to the lowest, in which courts of justice do 
 not act upon this principle " (rt'). His Lordship 
 added, "It therefore appears to me quite absurd to 
 state that we are not to act upon presumption. 
 Until it pleases Providence to give us means beyond 
 those our present faculties afford of knowing things 
 done in secret, we must act on presumptive proof, 
 or leave the worst crimes unpunished. I admit, 
 where presumption is attempted to be raised as to 
 the corpus delicti, that it ought to be strong and 
 cogent ' {e). Mr. Justice Holroyd said, " No man is 
 to be convicted of any crime upon mere naked pre- 
 sumption. A light or rash presumption, not arising 
 either necessarily, probably, or reasonably, from the 
 facts proved, cannot avail in law. But crimes of the 
 highest nature, more especially cases of murder, are 
 established, and convictions and executions there- 
 upon frequently take place for guilt most convin- 
 cingly and conclusively proved, upon presumptive 
 evidence only of the guilt of the party accused ; and 
 the well-being and security of society much depend 
 upon the receiving and giving due effect to such 
 proof The presumptions arising from those proofs 
 should, no doubt, and most especially in cases of 
 great magnitude, be duly and carefully weighed. 
 They stand only as proofs of the facts presumed till 
 the contrary be proved, and those presumptions are 
 {d) 4 B. & Aid., at p. 122. ie) lb. at p. 123,
 
 278 PROOF OF THE CORPUS DELICTI 
 
 either weaker or stronger according as the party 
 has, or is reasonably to be supposed to have it in 
 his power to produce other evidence to rebut or to 
 weai'cen them, in case the facts so presumed be not 
 true, and according as he does or does not produce 
 such contrary evidence " (/). Mr. Justice Bayley 
 said, " No one can doubt that presumptions may be 
 made in criminal as well as in civil cases. It is con- 
 stantly the practice to act upon them, and I appre- 
 hend that more than one-half of the persons con- 
 victed of crimes are convicted on presumptive 
 evidence. If a theft has been committed, and 
 shortly afterwards the property is found in the pos- 
 session of a person who can give no account of it, it 
 is presumed that he is the thief, and so in other 
 criminal cases ; but the question always is, whether 
 there are sufficient premises to warrant the presump- 
 tion " (,;f^). Lord Chief Justice Abbott said, "A fact 
 must not be inferred without premises which will 
 warrant the inference ; but if no fact could be thus 
 ascertained by inference in a court of law. very few 
 offenders could be brought to punishment. In a 
 great portion of trials, as they occur in practice, no 
 direct proof that the party accused actually com- 
 mitted the crime is or can be given ; the man who 
 is charged with theft is rarely seen to break the 
 house or take the goods ; and, in cases of murder, it 
 rarely happens that the eye of any witness sees the 
 fatal blow struck, or the poisonous ingredient poured 
 into the cup" [k). The law on this point was also 
 very emphatically declared by Mr. Baron Parke in 
 
 (/) 4 B. & Aid. at p. 139. 
 
 (^) Ih. at p. 149. {h) lb. at p. 161.
 
 BY CIRCUMSTANTIAL EVIDENCE. 279 
 
 Tavvell's case. His Lordship said, " The jury had 
 been properly told by the counsel for the prosecu- 
 tion, that circumstantial evidence is the only evi- 
 dence which can in cases of this kind lead to dis- 
 covery. There is no way of investigating them 
 except by the use of circumstantial evidence ; but 
 Providence has so ordered the affairs of men that it 
 most frequently happens that great crimes com- 
 mitted in secret leave behind them some traces, or 
 are accompanied by some circumstances which lead 
 to the discovery and punishment of the offender (z) ; 
 therefore the law has wisely provided that you need 
 not have, in cases of this kind, direct proof, that is, 
 the proof of eye-witnesses, who see the fact and can 
 depose to it upon their oaths. It is impossible, 
 however, not to say that that is the best proof, if 
 that proof is offered to you upon the testimony of 
 men whose veracity you have no reason to doubt ; 
 but, on the other hand, it is equally true with regard 
 to circumstantial evidence, that the circumstances 
 may often be so clearly proved, so closely connected 
 with it, or leading to one result in conclusion, that 
 the mind may be as well convinced as if it were 
 proved by eye-witnesses. This being a case of 
 circumstantial evidence, I advise you,*' said the 
 learned judge, " as I invariably advise juries, to act 
 upon a rule, that you are first to consider what facts 
 are clearly, distinctly, indisputably proved to your 
 
 (/) " Ces circonstances sont autant de temoins muets, que la 
 Providence semble avoir places autour du crime, pour fair jaillir la 
 lumi^re de Tombre dans laquelle I'agent s'est efforce d'ensevelir le 
 fait principal ; elles sont comme un fanal qui eclaire I'esprit du juge, 
 et le dirige vers des traces certaines, qu'il suffit de suivre pour 
 atteindre k la veritd" — Traite de la Preuve, par Mittermaier, ch. 53.
 
 28o PROOF OF THE CORPUS DELICTI 
 
 satisfaction ; and you are to consider whether those 
 facts are consistent with any other rational supposi- 
 tion than that the prisoner is guilty of the offence. 
 If you think that the facts in this case are all con- 
 sistent with the supposition that the prisoner is 
 guilty, and can offer no resistance to that, except 
 the character the prisoner has borne, and except the 
 supposition that no man would be guilty of so 
 atrocious a crime as that laid to the charge of the 
 prisoner, that cannot much influence your minds ; 
 for we all know that crimes are committed, and 
 therefore the existence of the crime is no incon- 
 sistency with the other circumstances, if those 
 circumstances lead to that result. The point for 
 you to consider is, whether, attending to the 
 evidence, you can reconcile the circumstances ad- 
 duced in evidence with any other supposition than 
 that he has been guilty of the offence ? If you can- 
 not, it is your bounden duty to find him guilty ; if 
 you can, then you will give him the benefit of such 
 a supposition. All that can be required is — not 
 absolute, positive proof — but such proof as con- 
 vinces you that the crime has been made out" (/§). 
 
 The same general principle prevails with regard 
 to the proof of crimes of every description, and of 
 every element of the corpus delicti. Thus, on the trial 
 of a man for stealing pepper, it appeared that on the 
 first floor of a warehouse a large quantity of pepper 
 was kept in bulk, and that the prisoner was met 
 coming out of the lower room of the warehouse, 
 where he had no business to be, having on him a 
 quantity of pepper of the same description with 
 
 {ll) Reg. V. Tawell^ Aylesbury Spr. Ass. 1845, pp. 313-317, infra.
 
 BY CIRCUMSTANTIAL EVIDENCE. 28 1 
 
 that ill the room above. On being stopped he 
 threw down the pepper, and said, " I hope you will 
 not be hard with me." From the large quantity in 
 the warehouse it could not be proved that any 
 pepper had been taken from the bulk. It was 
 urged on behalf of the prisoner that there must be 
 direct and positive evidence of a corpus delicti, and 
 that presumptive evidence was insufficient for that 
 purpose ; but the Court for Crown Cases Reserved 
 held that the prisoner had been rightly convicted (/). 
 Mr. Justice Maule said that the offence with which 
 the prisoner is charged must be proved, and that 
 involves the necessity of proving that the pro- 
 secutor's goods have been taken. But why, con- 
 tinued the learned Judge, is that to be differently 
 proved from the rest of the case? If the circum- 
 stances satisfy the jury, what rule is there which 
 renders some more positive and direct proof 
 necessary } And he mentioned the case of a father 
 and two sons, who were convicted of stealing from 
 their employers a quantity of shoes and materials 
 for making shoes, though the prosecutors said their 
 stock was so large that they could not say they had 
 missed anv one of the articles allecred to have been 
 stolen i^Jt). 
 
 But It is not necessary that every individual fact 
 should be indisputably proved. On a trial for 
 forgery, in Scotland, Lord Meadowbank said : " I 
 must tell you that the learned counsel for the panel 
 stated the law incorrectly, when he said that you 
 
 (/) Reg. V. Burton, 23 L. J., N. S., M. C. 52 ; and see Reg. v. 
 Dredge, i Cox, 235 ; and p. 183 supra, 
 {tn) Reg. V. Burton (last note).
 
 202 PROOF OF THE CORPUS DELICTI 
 
 must have decisive, irrefragable, and conclusive 
 proof of every point in a case like the present, 
 before finding the instrument to be forged. The 
 law is quite the reverse. You are to take all the 
 evidence together, and you are bound to consider 
 whether it amounts and comes up to affording a moral 
 conviction in your minds equivalent to the positive 
 and direct proof of a fact " (;/). 
 
 Section 3. 
 
 application of the general principle to proof 
 of the corpus delicti in cases of homicide. 
 
 The general principles of evidence under discussion 
 are so supremely important in reference to cases of 
 homicide, that it will be expedient to illustrate the 
 application of them at some length. 
 
 (i) The discovery of the body necessarily affords 
 the best evidence of the fact of death, and of the 
 identity of the individual, and most frequently also 
 of the cause of death (o). A conviction for murder 
 is therefore never allowed to take place, unless the 
 body has been found, or there is equivalent proof of 
 death by circumstantial evidence leading directly to 
 that result (/), and many cases have shown the 
 danger of a contrary practice. Three persons were 
 executed in the year 1660, for the murder of a 
 person who had suddenly disappeared {(j), but about 
 
 («) Reo-. V. Hzimphreys^ pp. 198-201, supra. 
 {0) Traite de la Preuve, par Mittermaier, ch. 24. 
 (p) Per Parke, B., in Reg. v. Tawell, pp. 313-317) ifjfra. 
 {q) Rex V. Perry, 14 St. Tr. 1312 ; and see 11 St. Tr. 463; see 
 also the Scotch case of Green and others^ 14 St. Tr. 1199, v.here, in
 
 IN CASES OF HOMICIDE. 283 
 
 two years afterwards he reappeared. It appeared 
 that he had been out to collect his mistress's rents, 
 and had been robbed by highwaymen, who put him 
 on board a ship which was captured by Turkish 
 pirates, by whom he was sold into slavery. Sir 
 Matthew Hale mentions a case where A. was long 
 missing, and upon strong presumptions B. was 
 supposed to have murdered him, and to have con- 
 sumed the body to ashes in an oven, whereupon B. 
 was indicted of murder, and convicted, and executed ; 
 and within one year afterwards A. returned, having 
 been sent beyond sea by B. against his will ; " and 
 so," that learned writer adds, " though B. jusdy 
 deserved death, yet he was really not guilty of that 
 offence for which he suffered " (r). Lord Coke 
 also gives the case of a man who was executed 
 for the murder of his niece, who was afterwards 
 found to be living, of which the particulars have 
 been given in a former part of this Essay (s). Sir 
 Matthew Hale, on account of these cases, says : " I 
 will never convict any person of murder or man- 
 slaughter, unless the fact were proved to be done, 
 or at least the body found " (/). The judicial history 
 of all nations, in all times, abounds with similar 
 warnings and exemplifications of the danger of 
 neglecting these salutary cautions (u). 
 
 1705, the captain of a vessel and several of his crew were executed on 
 a charge of piracy and murder ; but the party supposed to have been 
 murdered reappeaied many years afterwards, having been taken at 
 sea and carried into captivity. 
 
 (r) 2 Hale's P. C. c. 39, 
 
 (j) See p. 212, supra. 
 
 (/) 2 P. C. ch. 39. 
 
 {u) See the case of the two Booms^ 1 Greenleaf's L. of Ev. § 214, 
 and p. 95, supra.
 
 2 84 PROOF OF THE CORrUS DELICTI 
 
 P)iit, nevertheless, to require the discovery of 
 the body in all cases would be unreasonable and 
 lead to absurdity and injustice, and it is indeed 
 frequently rendered impossible by the act of the 
 offender himself It is said that on the trial for 
 murder of the mother and reputed father of a 
 bastard child, whom they had stripped and thrown 
 into the dock of a seaport town, after which it was 
 never seen again, Mr. Justice Gould advised an 
 acquittal on the ground that as the tide of the sea 
 flowed and reflow^ed into and out of the dock 
 it might possibly have carried out the living- 
 infant (-r). Mr. Justice Story said of the pro- 
 position in question that " it certainly cannot be 
 admitted as correct in point of common reason or 
 of law, unless courts of justice are to establish a 
 positive rule to screen persons from punishment who 
 may be guilty of the most flagitious offences. In 
 the cases of murder committed on the high seas the 
 body is rarely if ever found, and a more complete 
 encouragement and protection to the worst offences 
 of this sort could not be invented than a rule of 
 this strictness. It would amount to a universal 
 condonation of all murders committed on the high 
 seas ' {j^'). It is now clearly established that the 
 fact of death may be legally inferred from such 
 strong and unequivocal circumstances of presump- 
 tion as render it morally certain, and leave no ground 
 for reasonable doubt ; as where, on the trial of a 
 mariner for the murder of his captain at sea, a 
 
 (x) Per Garrow arguetido in Rex v. Hiiidinarsh, 2 Leach, C. C. 571 
 ( v) United States v. Gilbert^ 2 Sumner, 19, quoied in Benill on Cir. 
 Ev. 679.
 
 IN CASES OF HOMICIDE. 2 85 
 
 witness stated that the prisoner had proposed to kill 
 him, and that, being alarmed in the night by a violent 
 noise, he went upon deck and saw the prisoner 
 throw the captain overboard, and that he was not 
 seen or heard of afterwards and that near the place 
 on the deck where the captain was, a billet of wood 
 was found, and that the deck and part of the 
 prisoner's dress were stained with blood. It was 
 urged that, as there were many vessels near the 
 place where the transaction was alleged to have 
 occurred, the probability was that the party had 
 been taken up by some of them and was then 
 alive ; but the Court, though it admitted the 
 general rule of law, left it to the jury to say upon 
 the evidence, whether the deceased was not killed 
 before the body was cast into the sea, and the jury 
 being of that opinion, the prisoner was convicted 
 and executed (r) ; but it is not easy to perceive why 
 the natural presumption from these facts should have 
 been thus restricted to a presumption that the party 
 had been killed before he was thrown overboard. 
 
 The rule and its qualifications are well exemplified 
 by the case of Elizabeth Ross, who was tried for the 
 murder of Caroline Walsh. The deceased had been 
 repeatedly solicited by the prisoner to live with her 
 and her husband, but had refused. However she 
 at last consented, and went for that purpose to the 
 prisoner's lodgings, in Goodman's Fields, in the 
 evening of the 19th of August 1831, taking with her 
 her bed and an old basket, in which she was accus- 
 tomed to carry tape and other articles for sale. Not- 
 
 (z) Rex V. Hinchnarsk, 2 Leach, C. C. 569
 
 286 PROOF OF THE CORPUS DELICTI 
 
 withstanding all inquiry, from that evening all traces 
 of the deceased were lost, and when the prisoner was 
 required by Walsh's relatives to account for her dis- 
 appearance she prevaricated, but finally asserted that 
 she had gone out early in the morning of the next 
 day, and had not returned. Many circumstances 
 confirmed their suspicions that she had been mur- 
 dered, and in the month of October the prisoner was 
 apprehended, and charged with the murder of the 
 old woman. From the testimony of the prisoner's 
 son, a boy of twelve years of age, it appeared that 
 she had suffocated the deceased on the evening of 
 her arrival, by placing her hands over her mouth, 
 and pressing on her chest ; and he deposed that the 
 following morning he saw the dead body in the cellar 
 of the house, and that in the evening he saw his 
 mother leave the house with something large and 
 heavy in a sack. A medical man deposed that the 
 means described would be sufficient to cause death. 
 It happened most singularly that, on the evening of 
 the day following that of the alleged murder, an old 
 woman was found lying in the street in the immediate 
 neighbourhood, in a completely exhausted condition, 
 and in a most filthy and squalid state. On being ques- 
 tioned she stated that her name was Caroline Welsh, 
 and that she was a native of Ireland. Her hip was 
 found to be fractured, in consequence of which she 
 was conveyed to the London Hospital, where she 
 subsequently died. The prisoner when apprehended 
 insisted that this was the female whom she was 
 accused of having murdered. The resemblance of 
 names and the coincidence of time were very re- 
 markable ; but by the examination of numerous wit'
 
 IN CASES OF HOMICIDE. 287 
 
 nesses the following points of difference were estab- 
 lished. They were both Irishwomen ; but Carohne 
 Walsh came from Kilkenny ; Caroline Welsh from 
 Waterford. Walsh was eighty-four years of age, 
 tall, of a sallow complexion, grey hair, and had very 
 perfect incisor teeth in both jaws, having lost only a 
 side tooth in the upper and lower jaws from the effect 
 of continual smoking with a tobacco-pipe. Welsh 
 (the woman who died in the hospital) was about 
 sixty years of age, tall, dark like a mulatto, but had 
 no front teeth, and the alveolar cavities correspond- 
 ing to them had been obliterated for a considerable 
 time. Walsh was healthy, cleanly, and neat in her 
 person, and her feet were perfectly sound ; Welsh 
 was considerably emaciated ; in a dirty and filthy 
 condition ; her hip broken, her feet covered with 
 bunions and excrescences, and the toes overlapped 
 one another. The two women were differently 
 dressed : Walsh was dressed in a black stuff gown, 
 a broken old willow bonnet, and a faded blue shawl 
 with a broad border ; Welsh wore a striped blue 
 cotton oown, a dark or black silk bonnet, and a 
 snuff-coloured shawl with little or no border. Walsh's 
 clothing was proved to have been sold by the 
 prisoner to different persons, and almost every article 
 was produced in court and identified. The clothes 
 of Welsh, on account of their disgusting condition, 
 had been burnt by order of the parish authorities. 
 Both of these women had similar baskets : that of 
 Walsh had no lid or cover, while that found on 
 Welsh had. Lastly, the body of the latter was taken 
 up from the burial-ground of the London Hospital 
 for the purpose of identification, and it was sworn
 
 2 88 PROOF OF THE CORPUS DELICTI 
 
 by two of the granddaughters of Walsh not to be 
 the body of their grandmother. The prisoner was 
 convicted and executed [a). The corpse of the mur- 
 dered woman was most probably sold by the prisoner 
 for the purpose of dissection ; and other murders 
 were committed about the same time both in England 
 and Scotland from the same motive (d). 
 
 (2) It is another necessary step in the establish- 
 ment of the corpus delicti in cases of homicide, that 
 the body, when discovered, be satisfactorily identified 
 as that of the person whose death is the subject of 
 inquiry. Mr. Justice Park stopped the trial of a 
 woman, charged with the murder of her illegitimate 
 child, because the supposed body was nothing but a 
 mass of corruption, so that there were no lineaments 
 of the human face, and it was impossible even to 
 distinguish its sex (^). On the trial of a woman for 
 the murder of her brother, a child eight years of age, 
 by poison, the sexton proved the interment on the 
 29th of June, and the exhumation on the 12th of 
 August following, of a body which he believed to be 
 that of the deceased, from the coffin-plate, and the 
 place from which he had exhumed it, but he had not 
 seen the body in the coffin at ihe time of interment, 
 and could not recognise it independently of those 
 circumstances, on account of its state of decay. Mr. 
 Baron Maule refused to receive evidence of the con- 
 tents of the coffin-plate, on the ground that, being- 
 
 {a) Rex V. Ross^ O. B. Sess. Pap. 1831. 
 
 \b) See Rex v. Burke, Alison's Principles of the Criminal Law of 
 Scotland, p. 74 ; Syme's Justiciary Rep. 345. Rex v. Bishop and 
 others, O. B. Sess. Pap. 1832. 
 
 {c) See his charge to the grand jury in Rex v. Thitrtcll, Hertford 
 winter assizes, 1824.
 
 IN CASES OF HOMICIDE. 289 
 
 removable, it ought to have been produced, and there 
 being- no other evidence of identity stopped the 
 case {({). On the trial of a girl for the murder of her 
 illegitimate child, it appeared that she was proceed- 
 ing from Bristol to Llandogo, and was seen near 
 Tintern at six o'clock in the evening, with the child 
 in her arms, and that she arrived at Llandogo be- 
 tween eight and nine without it, and that the body of 
 a child was afterwards found in the river Wye near 
 Tintern, but which appeared from circumstances not 
 to be the prisoner's child ; Lord Abinger held that 
 the prisoner could not be called upon to account for 
 her child, or to say where it was, unless there was 
 evidence to show that her child was actually dead ; 
 the jury v/ere not sitting, he said, to inquire what the 
 prisoner had done with her child, which might be 
 then alive and well [c). In a similar case, Mr. Baron 
 Bramwell observed that the evidence of identity was 
 not complete ; that still, if the jury thought there 
 was reasonable evidence upon the point, they might 
 think that if the child was still alive the prisoner 
 would probably produce it in a case where her life 
 was at stake, but that she was at liberty to act upon 
 the defect of proof, and to say that the prosecutor 
 had failed to prove the identity (_/). 
 
 But, nevertheless, it is not necessary that the 
 remains should be identified by direct and positive 
 evidence, where such proof is impracticable, and 
 
 {d) Reg. V. Edge, p. 260, supra ; and see Reg. v. Hinhy, i Cox, 
 C. C. at p. 13. 
 
 {e) Reg. V. Hopkins, 8 C. & P. 591. 
 
 (/) Reg. V. Rudge, Hereford Summer Assizes, 1857. 
 
 C.E. U
 
 290 PROOF OF THE CORPUS DELICTI 
 
 especially if it has been rendered so by the act of 
 the party accused. A man was convicted of the 
 murder of a creditor who had called to obtain pay- 
 ment of a debt, and whose body he had cut into 
 pieces and attempted to dispose of by burning ; the 
 effluvium and other circumstances alarmed the 
 neighbours, and a portion of the body remained 
 unconsumed, sufficient to prove that it was that of a 
 male adult ; and various articles which had belonged 
 to the deceased were found on the person of the 
 prisoner, who was apprehended putting off from the 
 Black Rock at Liverpool, after having ineffectually 
 endeavoured to elude justice by drowning himself {^c>). 
 The remains of a man which had lain undiscovered 
 upwards of twenty-three years were identified by 
 his widow from peculiarities in the teeth and skull, 
 and from a carpenter's rule found with them (k). 
 The identification of human remains has been facili- 
 tated by the preservation of the head and other 
 parts in spirits [i) ; by the antiputrescent action 
 of the substances used to destroy life ; by the 
 similarity of the undigested remains of food found 
 in the stomach, with the food which it has been 
 known that the party has eaten [k) ; by means of 
 clothingf or other articles of the deceased traced to 
 the possession of the prisoner, and unexplained by 
 any evidence that he became innocently possessed 
 
 {g) Rexv. Cook, Leicester Summer Assizes, 1834. ; and see Reg. v. 
 Good, C. C. C. Sess. Pap., May 1842. 
 
 {h) Rex V. Clewes, Worcester Spring Assizes, 1830, coram Little- 
 dale, J, 
 
 (?■) Rex V. Hayes and others, Paris and Fonblanque's Medical 
 Jurisprudence, vol. iii. p. 73. 
 
 {k) Rex V. MacDougal, Burnett's Criminal Law of Scotland, p. 54a
 
 IN CASES OF HOMICIDE. 29 1 
 
 of them (/) ; by means of artificial teeth (jn), and by 
 numerous other mechanical coincidences. 
 
 (3) In the proof of criminal homicide the true 
 cause of death must be clearly established ; and the 
 possibility of accounting for the event by self- 
 inHicted violence, accident or natural cause, excluded ; 
 and only when it has been proved that no other 
 hypothesis will explain all the conditions of the case 
 can it be safely and justly concluded that it has 
 been caused by intentional injury. But, in accord- 
 ance with the principles which govern the proof of 
 every other element of the corpus delicti, it is not 
 necessary that the cause of death should be verified 
 by direct and positive evidence ; it is sufficient if it 
 be proved by circumstantial evidence, which pro- 
 duces a moral conviction in the minds of the jury, 
 equivalent to that which is the result of positive and 
 direct evidence {11). 
 
 Suicide, accident, and natural causes are frequently 
 suggested and plausibly urged, as the causes of 
 death, where the allegation cannot receive direct con- 
 tradiction, and where the truth can be ascertained 
 only by a comparison of all the attendant circum- 
 stances ; some of which, if the defence be false, are 
 commonly found to be irreconcilable with the cause 
 alleged. 
 
 (/) Rex V. Ross, p. 285, supra ; Reg. v. Good, C. C. C. Sess. Pap., 
 May 1842. 
 
 {in) Reg. V. Manning and wife, p. 265, sttpra ; and Professof 
 Webster's case, p. 109, supra. 
 
 (n) See the language of Lord Meadowbank in Reg. v. Humphrey s^ 
 Swintons Report, 315 ; see pp. 198-201, supra. 
 
 U 2
 
 292 PROOF OF THE CORPUS DELICTI 
 
 A m;in named Corder was charg-ed with the 
 murder of a yoLiiiL;" woman whom he had seduced 
 and who had borne him a child. He took her from 
 her father's house under the pretence of conveying 
 her to I])swich to be married. Believing that, as 
 he had told her, the parish officers meant to appre- 
 hend her, she left her house on the iSth of May in 
 disguise, a bag containing her own clothes having 
 been taken by the prisoner to a barn belonging to 
 his mother, where it was agreed that she should 
 change her dress. The deceased was never heard 
 of afterwards ; and the various and contradictory 
 accounts given of her by the prisoner having excited 
 suspicions, which were confirmed by other circum- 
 stances, it was ultimately determined to search the 
 barn ; where, on the 19th of April, after an interval 
 of nearly twelve months, the body of a female was 
 found, which was clearly identified as that of the 
 deceased. A handkerchief was drawn tightly round 
 the neck, and a wound from a pistol-ball was traced 
 through the left cheek, passing out at the right 
 orbit ; and three other wounds were found, all of 
 which had been made by a sharp instrument, and 
 one of which had entered the heart. The prisoner, 
 who in the interval had removed from the neigh- 
 bourhood, upon his apprehension denied all know- 
 ledo-e of the deceased ; but in his defence he admitted 
 the identity of the remains, and alleged that an 
 altercation took place between them at the barn, in 
 consequence of which, and of the violence of temper 
 exhibited by the deceased, he expressed his deter- 
 mination not to marry her, and left the barn ; but 
 that immediately afterwards he heard the report 0/
 
 IN CASES OF HOMICIDE, 293 
 
 a pistol, and going back found the deceased on the 
 ground apparently dead ; and that, alarmed by the 
 situation in which he found himself, he formed the 
 determination of burying the corpse and accounting 
 for her absence as well as he could. But the variety 
 of the means and instruments employed to produce 
 death, some of them unusual with females, in connec- 
 tion with the contradictory statements made by the 
 prisoner to account for the absence of the deceased, 
 entirely discredited the account set up by him, and 
 he was convicted. He afterwards made a full 
 confession, and v/as executed pursuant to his sen- 
 tence {0). 
 
 In 1884 a woman was tried before Mr. Justice 
 Hawkins for the murder of her husband by shoot- 
 ing him. The defence was suicide. The medical 
 evidence showed that death was caused by four 
 bullet wounds from a revolver ; that, although any 
 one of them might have been self-inflicted, it was 
 highly improbable that all four were ; and that, in 
 order to cause one of the wounds upon himself, the 
 deceased man must have held the revolver in his 
 left hand. It was also proved that he was right- 
 handed. The prisoner was convicted (/>). 
 
 But these heads of evidence belono- rather to 
 the department of medical jurisprudence. Such 
 auxiliary evidence is frequently of the highest value 
 in demonstrating the falsehood and impossibility of 
 the alleged defence ; but, when uncorroborated by 
 
 (0) Hex V. Corder, Bury St. Edmund's Summ. Assizes, 1828. 
 
 (/>) Rex\. Gibbons, C. C. C. Sess. Pap., December 18 & 19, 1884.
 
 294 PROOF OF THE CORPUS DELICTI 
 
 conclusive moral circumstances, it must be received 
 with a certain amount of circumspection and reserve, 
 of the necessity for which some striking illustrations 
 have occurred in other parts of this essay (q). These 
 preliminary considerations naturally lead to the 
 application of them to the proof of the corpus delicti 
 in some special cases of great importance and 
 interest. 
 
 Section 4. 
 
 application of the general principle to the 
 
 proof of the corpus delicti in cases of 
 
 poisoning. 
 
 There are two classes of cases of criminal homicide, 
 in which the cause of death can rarely be proved 
 by direct evidence, and in which the proof of it by 
 circumstantial evidence is attended with peculiar 
 difficulties : those, namely, of poisoning and infanti- 
 cide. An examination of the principles on which 
 courts of law proceed in the investigation of such 
 cases will afford an instructive commentary upon 
 the foregoing principles of evidence and procedure. 
 
 I. Among the most important grounds upon 
 which the proof of criminal poisoning commonly 
 rests are, the symptoms during life, Siiid post-mortem 
 appearances ; but these subjects belong to another 
 department of science, and have only an incidental 
 connection with the subject of this treatise. As is 
 the case with regard to all other questions of science, 
 
 {g) See particularly, Rex v. Booth, pp. 146-148, supra ; and Reg. v 
 Newton, pp. 148-154, supra.
 
 IN CASES OF POISONING. 295 
 
 courts of justice must derive their knowledge from 
 the testimony of persons who have made them the 
 objects of their special study, applying to the data 
 thus obtained those principles of interpretation and 
 judgment which constitute the tests of truth in all 
 other cases. 
 
 It is obviously essential that the particular sym- 
 ptoms and post-niorti in appearances should be shown 
 to be not incompatible with the hypothesis of death 
 from poison. In general such appearances are in- 
 conclusive, since, though they are commonly charac- 
 teristic of death from poison, they not unfrequently 
 resemble the appearance of disease, and may have 
 been produced by some natural cause. Neverthe- 
 less, as to some particular poisons, the symptoms 
 may be so characteristic as to afford unmistakable 
 evidence of poisoning, and preclude all possibility 
 of referring the event of death to any other cause. 
 Thus in Palmer's case (r), it was conclusively shown 
 by numerous witnesses of the greatest professional 
 experience, that the symptoms in the course of their 
 progress w^ere clearly distinguishable from those of 
 tetanus or any other known form of disease, and 
 were not only consistent with, but specially charac- 
 teristic of, poisoning by strychnine. 
 
 It is a very important circumstance In corrobora 
 tion of the reality of alleged poisoning, if several 
 persons are simultaneously affected with symptoms 
 indicative of poisoning, after partaking of the same 
 food, as when four members of a family were taken 
 
 (r) See pp. 344-35 ii inf^<*-
 
 296 PROOF OF THE CORPUS DELICTI 
 
 ill after having eaten of yeast dumplings made by 
 the prisoner, who was the cook, while those members 
 who had not partaken of them were not affected (s). 
 
 The probability in such cases is greatly strength- 
 ened if the violence of the symptoms has been in 
 proportion to the quantities of the suspected food 
 taken by the parties (/) ; and, on the other hand, a 
 favourable presumption is created, if only one mem- 
 ber of a family is taken ill after partaking of food of 
 which other members have eaten with impunity (?/). 
 From the nature of the case, these elements of 
 proof never occur alone ; but are necessarily blended 
 with facts of a more conclusive character. 
 
 2. The possession of poisonous matter by the 
 person charged with the administration of it, is always 
 an important fact, and when death has been caused 
 by poist)n of the same kind, and no satisfactory ex- 
 planation of that fact is given by the accused or 
 suggested by the surrounding circumstances, a strong 
 inference of guilt may be created against the ac- 
 cused ; especially if he has attempted to account for 
 such possession by false statements. In Palmer's 
 
 (s) Rex V. Fc7i7ii7ig, coram the Recorder of London, O. B. Sess. 
 Pap., 18 1 5. Cf. p. 218, sttpra. The evidence against this young 
 girl was most unsatisfactory, and she was long thought to have been 
 unjustly convicted (3 Mem. of Romilly, 235 ; Suggestions for the 
 Repression of Crime, by M. D. Hill, 31) ; but it has been stated on 
 good authority that she made a confession to a minister of religion, 
 who had her confidence (see "The Times" of Aug. 5, 1857). It is 
 unaccountable that the statement should have been withheld, and the 
 public suffered to remain for nearly half a century under the belief 
 that she was wrongfully executed. 
 
 (/) Rexv. Alcorn, Syme's Justiciary Rep. 221. 
 
 («) Rex v. Bickle, Exeter Summ. Ass. 1834, coram Patteson, J,
 
 IN CASES OF POISONING. 297 
 
 case, the Lord Chief Justice Lord Campbell said that 
 if the jury should come to the conclusion that the 
 symptoms which the deceased had exhibited were 
 consistent with strychnia, a fearful case was made 
 out against the prisoner. " I have listened," said the 
 learned judge, " with the most anxious attention to 
 know what explanation would be given respecting 
 the strychnia that has been purchased by the 
 prisoner. There is no evidence of the intention 
 with which it was purchased, there is no evidence 
 how it was applied, what became of it, or what was 
 done with it " (,v). 
 
 3. Not only must it appear that the accused 
 possessed the deadly agent, but it is indispensable 
 to show that he had the opportunity of administering 
 it. Upon the effect of these heads of evidence, and 
 upon the caution with which they ought to be 
 received, some valuable observations were made by 
 Mr. Baron Rolfe in a case before him. The 
 prisoner was indicted for the murder of his wife, 
 who was taken ill on the morning of the 25th of 
 November, and died two days afterwards with 
 symptoms resembling those of an irritant poison. 
 Poisoning not having been suspected, the body was 
 interred without examination ; but suspicions having 
 afterwards arisen, it was exhumed in the month of 
 June following, and a large quantity of arsenic was 
 discovered in the stomach. Several weeks after 
 the apprehension of the prisoner, the police took 
 possession of some of his garments, which were 
 found hanging up in his lodgings, in the pockets of 
 
 {x) See pp. 344-35 1 > "J/'^^-
 
 298 PROOF OF THE CORPUS DELICTI 
 
 which arsenic was found. In his address to the 
 jury, Mr. Baron Rolfe said, " H;k1 the prisoner the 
 opportunity of administering poison ? — that is one 
 thing. Had he any motive to do so ? — that is 
 another. There is also another question, which is 
 most important ; it is whether the person who had 
 the opportunity of administering poison had poison 
 to administer? If he had not the poison, the having 
 the opportunity becomes unimportant. If he had 
 the poison, then another question arises — did he 
 get it under circumstances such as to show that it 
 was for a guilty or improper object ? The evidence 
 by which it is attempted to trace poison to the 
 possession of the prisoner is, that on a certain occa- 
 sion, after the death of his wife, and after he him- 
 self was apprehended, the contents of the pockets 
 of a coat, waistcoat, and trousers, on being tested 
 by the medical witnesses, were found to contain 
 arsenic ; and that, a week afterwards, another waist- 
 coat which came into the possession of the police- 
 man, on being examined, was also found to contain 
 arsenic. Does that bring home to the prisoner the 
 fact that he had arsenic in his possession in Novem- 
 ber ? It is not conclusive that, because he had it 
 in June, he had it in November. I infer from what 
 has been stated by the medical men, that the 
 quantity of arsenic found in the pockets of the 
 clothes was very small. Now, if he had it in a 
 larger quantity in November, and it had been 
 used for some purpose, being a mineral substance, 
 such particles were likely to remain in the pockets, 
 and finding it there in June is certainly evi- 
 dence that it might have been there in larger
 
 IN CASES OF POISONING. 299 
 
 quantity in November ; but, obviously, by no means 
 conclusive, as it mi^ht have been put in afterwards. 
 But, conn(;cted with the arsenic bein<( found in the 
 clothes, there are other considerations which are 
 worthy to be attended to. The prisoner was appre- 
 hended on the 9th of June, and he knew long before 
 that time that an inquiry was goins^' on. He was 
 taken up, not in the clothes in which the arsenic 
 was found ; and a fortnight afterwards a batch of 
 clothes was given up in which arsenic was detected. 
 Now, if arsenic had been found in the clothes he 
 was wearing, it would be perfectly certain, in the 
 ordinary sense, that he had arsenic in his possession. 
 But it is going a step further to say that because 
 arsenic is discovered in clothes of his, accessible to 
 so many people between the time of his appre- 
 hension and their being given up, it was there when 
 he was apprehended ; in all probability it was, but 
 that is by no means the necessary consequence. 
 This observation is entitled to still more weight, 
 with regard to the waistcoat last given up to the 
 police, because it was not given up till three weeks 
 after the prisoner was apprehended, and had been 
 hanging in the kitchen, accessible to a variety of 
 persons. . . It is urged also that arsenic is used 
 for cattle. It may be so, and it may be that the 
 prisoner may innocently have had arsenic. The 
 circumstance of there being arsenic in so many 
 pockets ought not to be lost sight of, for it can 
 scarcely be conceived that a guilty person should 
 be so utterly reckless as to put the poison he used 
 into every pocket he had. One would have thought 
 that he would have kept it concealed, or put it only
 
 300 PROOF OF THE CORPUS DELICTI 
 
 in some safe place for the immediate purpose of 
 being used ; and it is worthy of observation that it 
 does not appear to have been put into the clothes 
 in such a way as it would have been put had the 
 prisoner been desirous to conceal it." The prisoner 
 was acquitted (j'). 
 
 In a later case of the deepest interest, before the 
 High Court of Justiciary at Edinburgh, a question 
 whether or not the prisoner had the opportunity 
 of administerino" arsenic to the deceased was the 
 turning-point of the case. The prisoner, a young 
 girl of nineteen, was tried upon an indictment 
 chareingf her, in accordance with the law of Scot- 
 land, with the administration to the same person of 
 arsenic, with intent to murder, on two several 
 occasions in the month of February, and with his 
 murder by the same means on the 22nd of March 
 following. She had returned home from a boarding 
 school in 1853, and in the following year formed a 
 clandestine connection with a foreigner of inferior 
 position, named L'Angelier, whose addresses had 
 been forbidden by her parents. Early in 1856 
 their intercourse assumed an unlawful character, 
 as was shown by her letters. In the month of 
 December following, another suitor appeared, whose 
 addresses were accepted by her with the consent of 
 her parents, and arrangements were made for their 
 marriage in June. During the earlier part of this 
 engagement, the prisoner kept up her interviews 
 and correspondence with L'Angelier ; but the 
 correspondence gradually became cooler, and she 
 
 (y) Jieg: V. Graham^ Carlisle Summer Assizes, 1845.
 
 IN CASES OF POISONING. 3OI 
 
 expressed to him her determination to break off 
 the connection, and implored him to return her 
 letters ; but this he refused to do, and declared that 
 she should marry no other j>erson while he lived. 
 After the failure of her efforts to obtain the return 
 of her letters, she resumed in her correspondence 
 her former tone of passionate affection, assuring 
 him that she would marry him and no one else, and 
 denying that there was any truth in the rumours of 
 her connection with another. She appointed a 
 meeting on the night of the 19th of February, at 
 her father's house, where she was in the habit of 
 receiving his visits, after the family had retired to 
 rest, telling him that she wished to have back her 
 "cool letters," apparently with the intention of 
 inducinof him to believe that she remained constant 
 in her attachment to him. In the middle of the 
 night after that interview, at which he had taken 
 coffee prepared by the prisoner, L'Angelier was 
 seized with alarming illness, the symptoms of which 
 were similar to those of poisoning by arsenic. There 
 was no evidence that the prisoner possessed arsenic 
 at that time, but on the 21st she purchased a large 
 quantity, professedly for the purpose of poisoning 
 rats, an excuse for which there was no pretence. 
 On the nicrht of the 22nd, L'x'\nQ:elier aQfain visited 
 the prisoner, and about eleven o'clock on the follow- 
 ing day was seized with the same alarming symptoms 
 as before ; and on this occasion also he had taken 
 cocoa from the hands of the prisoner. After this 
 attack L'Angelier continued extremely ill, and wasad- 
 vised to go from home for the recovery of his health. 
 On the 6th of March the prisoner a second time
 
 302 PROOF OF THE CORPUS DELICTI 
 
 bought arsenic ; and on the same day she went with 
 her family to the Bridge of Allan (where she was 
 visited by her accepted lover), and remained till the 
 17th, when they returned to Glasgow. On the day 
 before her departure for the Bridge of Allan 
 L'Angelier wrote a letter to her, in which he re- 
 proached her for the manner in which she had evaded 
 answering the questions which he had put to her in 
 a former letter respecting her rumoured engagement 
 with another person, expressed his conviction that 
 there was foundation for the report, and after 
 repeating his inquiries threatened, if she again 
 evaded them, to try some other means of coming at 
 the truth. To this letter, the prisoner replied from 
 the Bridge of Allan, that there was no foundation 
 for the report, and that she would answer all his 
 questions when they met, and informed him of her 
 expected return to Glasgow on the 17th of March. 
 L'Angelier, pursuant to medical advice, on the loth 
 of March went to Edinburgh, leaving directions for 
 the transmission of his letters, and having become 
 much better, left that place on the 19th for the 
 Bridge of Allan. During this interval, namely, on 
 the 17th, he returned to his lodgings at Glasgow, 
 and inquired anxiously jf his landlady if there was no 
 letter waiting for him, as the prisoner's family were 
 to be at home on that day, and she was fo write to 
 fix another interview. He left Glasgow again on 
 Thursday the 19th for the Bridge of Allan, leaving 
 directions as before for the transmission to him of any 
 letter which might come for him during his absence. 
 On the 18th of March, the prisoner a third time 
 purchased a large quantity of arsenic, alleging,
 
 IN CASES OF POISONING. 303 
 
 as before, that It was for the purpose of killing- 
 rats. A letter from the prisoner to L'Angelier came 
 to his lodgings on Saturday the 21st, from the date 
 and contents of which it appeared that she had 
 written a letter appointing to see him on the 19th ; 
 he had not, however, received it in time to enable 
 him to keep her appointment. In that letter she 
 urged him to come to see her, and added, " I waited 
 and waited for you, but you came not. I shall wait 
 again to-morrow night, same time and arrange- 
 ment." This letter was immediately transmitted to 
 L'Angelier, and in consequence he returned to his 
 lodgings at Glasgow about eight o'clock on the 
 evening of Sunday the 22nd, in high spirits and 
 improved health, having travelled a considerable 
 distance by railway, and walked fifteen miles. He 
 left his lodo-incrs about nine o'clock, and was seen 
 going leisurely in the direction of the prisoner's 
 house, and about twenty minutes past nine he called 
 at the house of an acquaintance who lived about 
 four or five minutes' walk from the prisoner's resi- 
 dence. After leaving his friend's house, all trace of 
 him was lost, until two o'clock in the morning, when 
 he was found at the door of his lodgings, unable to 
 open the latch, doubled up and speechless from 
 pain and exhaustion, and about eleven o'clock the 
 same morning he died, from the effects of arsenic, of 
 which an enormDus quantity was found in his body. 
 
 The prisoner stated in her declaration that she 
 had been in the habit of using arsenic as a cosmetic, 
 and denied that she had seen the deceased on 
 that eventful niorht ; whether she had done so or 
 not was the all-momentous question. As there was
 
 304 PROOF OF THE CORPUS DELICTI 
 
 no evicU^nce that the prisoner possessed poison at 
 the time of the first ilhiess, nor any analysis made 
 of the matter ejected on either the first or second 
 illness, the learned Lord Justice Clerk said that 
 there was no proof of the administration of poison 
 on either of those occasions ; that the first charge 
 therefore had entirely failed, and that it was safer 
 not to hold that the second illness was caused by 
 poison. 
 
 As to the principal charge of murder, his Lord- 
 ship said, " Supposing you are quite satisfied that 
 the prisoner's letter brought L'Angelier again 
 into Glasgow, are you in a situation to say, with 
 satisfaction to your consciences, as an inevitable and 
 just result from this, that the prisoner and deceased 
 met that night? — that is the point in the case. It 
 is for you to say whether it has been proved that 
 L'Angelier was in the house that night. Can you 
 hold that that link in the chain is supplied by just 
 and satisfactory inference — remember that I say 
 just and satisfactory — and it is for you to say 
 whether the inference is satisfactory and just, in 
 order to complete the proof .f* If you really feel that 
 you may have the strongest suspicion that he saw 
 her — and no one need hesitate to say that, as a 
 matter of moral opinion, the whole probabilities of 
 the case are in favour of it — but if that is all the 
 amount that you can derive from the evidence, the 
 link still remains wanting in the chain, the cata- 
 strophe and the alleged cause of it are not found 
 linked together. And therefore you must be satis- 
 fied that you can here stand and rely upon the firm 
 foundation, I say, of a just and sound, and perhaps
 
 IN CASES OF rOISONING. 305 
 
 I may add, inevitable inference. That a jury is 
 entitled often to draw such an inference there is no 
 doubt. . . If you find this to be a satisfactory and 
 just inference, 1 cannot tell you that you are not at 
 liberty to act upon it, because most of the matters 
 occurring in life must depend upon circumstantial 
 evidence, and upon the inferences which a jury may 
 feel bound to draw. But it is an inference of a 
 very serious character — it is an inference upon 
 which the death of this party by the hand of the 
 prisoner really must depend. And then, you will 
 take all the other circumstances of the case into 
 your consideration, and see whether you can infer 
 from them that they met. If you think they met 
 together that night, and he was seized and taken ill, 
 and died of arsenic, the symptoms beginning shortly 
 after the time he left her, it will be for you to say 
 whether in that case there is any doubt as to whose 
 hand administered the ooison." 
 
 In another part of his charge the learned Judge 
 said : — " In the ordinary matters of life, when you find 
 the man came to town for the purpose of getting a 
 meeting, you may come to the conclusion that the 
 meeting did take place ; but, observe, that becomes a 
 very serious inference indeed to draw in a case where 
 you are led to suppose that there was an adminis- 
 tration of poison, and death resulting therefrom. It 
 may be a very natural inference, looking at the 
 thing morally. None of you can doubt that she 
 waited for him again ; and if she waited the second 
 night, after her first letter, it was not surprising that 
 she should look out for an interview on the second 
 night, after the second letter. , . • She says, ' I 
 
 C.E. X
 
 306 PROOF OF THE CORPUS DELICTI 
 
 shall wait ayaiii to-morrow ni^ht, same hour and 
 arrangement.' And I say there is no doubt — but it 
 is a matter for you to consider — that after writing 
 this letter he might expect she would wait another 
 night, and therefore it was very natural that he 
 should oo to see her that Sunday nio^ht. 
 
 " But this is an inference only. If you think it 
 such a just and satisfactory inference that you can 
 rest your verdict upon i.t, it is quite competent for 
 you to draw such an inference from such letters as 
 these, and from the conduct of the man coming to 
 Glasgow for the purpose of seeing her — for it is 
 plain that that was his object in coming to Glasgow. 
 It is sufficiently proved that he went out im- 
 mediately after he got some tea and toast, and had 
 changed his coat. But then, in drawing an in- 
 ference, you must always look to the important 
 character of the inference which you are asked to 
 draw. If this had been an appointment about 
 business, and you found that a man came to Glas- 
 gow for the purpose of seeing another upon business, 
 and that he went out for that purpose, having no 
 other object in coming to Glasgow, you would 
 probably scout the notion of the person whom he 
 had gone to meet saying, ' I never saw or heard of 
 him that day ' ; but here you are asked to draw the 
 inference that they met upon that night, where the 
 fact of their meeting is the foundation of a charge of 
 murder. You must feel, therefore, that the drawing 
 of an inference in the ordinary matters of civil busi- 
 ness, or in the actual intercourse of mutual friends, 
 is one thing, and the inference from the fact that he 
 came to Glasgow, that they did meet, and that,
 
 IN CASES OF POISONING. 307 
 
 therefore, the poison was administered to him by 
 her at that time, is another, and a most enormous 
 juiiij) in the category of inferences. Now, the ques- 
 tion for you to put to yourselves is this — Can you 
 now, with satisfaction to your own minds, come to 
 the conclusion that they did meet on that occasion, 
 the result being, and the object of coming to that 
 conclusion being, to fix upon her the administration 
 of the arsenic by which he died ? 
 
 " She has arsenic before the 22nd ; and that is a 
 dreadful fact, if you are quite satisfied that she did 
 not get it and use it for the purpose of washing her 
 hands and face. It may create the greatest reluc- 
 tance in your minds to take any other view of the 
 matter, than that she was guilty of administering it 
 somehow, though the place where may not be made 
 out, or the precise time of the interview. But, on 
 the other hand, you must keep in view that arsenic 
 could only be administered by her if an interview 
 took place with L'Angelier ; and, though you may 
 be satisfied morally that it did take place, the fact 
 still rests upon an inference alone ; and that in- 
 ference is to be the ground, and must be the ground, 
 on which a verdict of guilty is to rest. You will see, 
 therefore, the necessity of great caution and jealousy 
 in dealing with any inference which you may draw 
 from these facts. You may be perfectly satisfied 
 that L'Angelier did not commit suicide ; and of 
 course it is necessary for you to be satisfied of that 
 before you could find that anybody administered 
 arsenic to him. Probably none of you will think 
 for a moment that he went out that night and that, 
 without seeing her, and without knowing what she 
 
 X 2
 
 308 PROOF OF THE CORPUS DELICTI 
 
 wanted to see him about, he swallowed above 200 
 grains of arsenic in the street, and that he was 
 carrying it about with him. Probably you will 
 discard such an idea altogether, . . . yet, on the 
 other hand, keep in view that that will not of itself 
 establish that the prisoner administered the poison. 
 The matter may remain most mysterious — wholly 
 unexplained ; you may not be able to account for it 
 on any other supposition ; but still that supposition 
 or inference may not be a ground on which you can 
 safely and satisfactorily rest your verdict against the 
 panel. 
 
 " Now then, gentlemen, I leave you to consider 
 the case with reference to the views that are 
 raised upon this correspondence. I don't think you 
 will consider it so unlikely as was supposed, that 
 this girl, after writing such letters, may have been 
 capable of cherishing such a purpose. But still, 
 although you may take such a view of her character, 
 it is but a supposition that she cherished this 
 murderous purpose — the last conclusion of course 
 that you ought to come to merely on supposition 
 and inference and observation, upon this varying 
 and wavering correspondence, of a girl in the 
 circumstances in which she was placed. It receives 
 more importance, no doubt, when you find the pur- 
 chase of arsenic just before she expected, or just at 
 the time she expected, L'Angelier. But still these 
 are but supposirions ; they are but suspicions. . 
 I don't say that inferences may not competently 
 be drawn ; bijt I have already warned you as to 
 inferences which may be drawn in the ordinary 
 matters of civil life, and those which may be drawn
 
 IN CASES OF POISONING. 309 
 
 in such a case as this ; and therefore if you cannot 
 say, We find here satisfactory evidence of this 
 meeting, and that the poison must have been ad- 
 ministered by her at a meeting — whatever may be 
 your suspicion, however heavy the weight and load 
 of suspicion is against her, and however you may 
 have to struggle to get rid of it, you perform the 
 best and bounden duty as a jury to separate sus- 
 picion from truth, and to proceed upon nothing that 
 you do not find established in evidence against her." 
 The jury returned, in conformity with the law of 
 Scotland, a verdict of not guilty on the first, and 
 of not proven on the second and third charges (-s'). 
 On the supposition that the parties met on the fatal 
 evening in question, there could be but one con- 
 clusion as to the guilt of the prisoner, the hypothesis 
 of suicide being considered by the learned Judge as 
 out of the question, as it obviously was ; and in the 
 language of the learned Judge, "that this man, 
 ardent to see this girl again, hoping to get the 
 satisfactory answer which she had promised to give 
 him respecting her runioured engagement with 
 another, should hurry home on the Sunday night, 
 and go out from his lodgings in the hope that he 
 could find her waiting, and that there was the 
 greatest probability of his seeing her, was, he 
 thought, the only conclusion the jury could come 
 to in the matter." Without presumption, it may 
 be observed that the distinction thus drawn between 
 "a very natural inference, looking at the thing 
 morally," "an inference that may satisfy a jury 
 
 {z) Reg. V. Madeleine Smith, June, 1857 ; Reports of A. F. Irvine, 
 Advocate, and John Morrison, Advocate.
 
 3IO -PROOF OF THE CORPUS DELICTI 
 
 morally," so that " no one need hesitate to say as a 
 matter of moral opinion, the whole [)robabilities of 
 the case are in favour of it," and "as the only con- 
 clusion the jury could come to," and that moral 
 certainty which Is the only foundation of our confi- 
 dence in the sufficiency and safety of conclusions 
 based upon circumstantial evidence, and which in 
 every case can be but Inferential, Is fine and shadowy 
 in the extreme. Nor is it easy to reconcile with 
 sound principle, as recognised in other cases, 
 English and Scotch, any distinction in the applica- 
 tion of the rules of evidence and Inference according 
 as the subject-matter relates to the ordinary or the 
 uncommon events of life (a). And even upon that 
 supposition, surely no matter or occasion of ordinary 
 business could have been more important to her, 
 or have more deeply interested the parties, or be 
 more likely to bring two young persons so mutually 
 implicated together, than the object of the anxiously 
 looked-for meeting appointed for the night in 
 question. It seems, indeed, difficult to conceive a 
 more unsatisfactory treatment of the case from any 
 logical or philosophical point of view. 
 
 4. The science of chemistry generally affords 
 most important auxiliary evidence as to the corpus 
 delicti in the investigation of cases of imputed 
 poisoning. As with regard to scientific evidence 
 of every other kind, the processes and results of 
 chemical analysis in application to the discovery or 
 reproduction of poison are subordinated to the 
 control of those general principles of law w^hlch, in 
 
 (a) See Rex v. Ings^ and Reg. v. Hanson and others, p. 270, supra.
 
 IN CASES OF POISONING. 3 II 
 
 all other cases, (govern the admissibility of evidence, 
 and the estimation of its weight and effect : indeed, 
 those rules have received some of their most in- 
 structive illustrations from cases of this nature. 
 
 Of the various chemical tests, unquestionably 
 those which, applied to the human body or its con- 
 tents or excreta, reproduce the particular poison 
 which has been employed, are the most satisfactory, 
 since, if the re-agents employed are free from im- 
 purities, they give an infallible result. 
 
 A remarkable exemplification of the necessity 
 of this qualification occurred in a trial in which 
 Reinsch's test, which hcid previously been regarded 
 as infallible in the separation of arsenic, turned out 
 to be fallacious when applied to potassium chlorate ; 
 and, in fact, the arsenic which was found in the 
 mixture had been liberated from the copper gauze 
 employed in the experiment (b). 
 
 In general, therefore, it may be considered as a 
 sound rule of procedure, founded in justice and 
 prudence, that such evidence, whenever it is capable 
 of being obtained, ought to be adduced, and in such 
 circumstances the failure to adduce such evidence, 
 unexplained by satisfactory reasons, gives serious 
 ground for doubt as to the reality of the alleged 
 poisoning. 
 
 But some of the vegetable poisons are, in the 
 
 {b) Reg. V. Smethurst, C. C. C. Sess. Pap., Aug. 1859, see p. 138, 
 supra. But arsenic was also found in an evacuation not complicated 
 with the same source of fallacy.
 
 312 PROOF OF THE CORPUS DELICTI 
 
 present state of science, beyond the reach of 
 chemical processes, and, under certain conditions, ' 
 also beyond the reach of physiological methods (^). 
 The offender himself, by his chemical knowledge 
 and choice of means, by the administration of 
 minimum doses, or by the destruction of the portions 
 of the body containing the suspected matter, or by 
 the destruction, dilution, or other tampering with 
 its exa^eta or contents, may have rendered detection 
 by the reproduction of the deadly agent impracti- 
 cable ; or the absorption of the poison, or a want of 
 skill in the experimenter, or failure to employ the 
 proper means, or other cause may have rendered 
 the necessary chemical researches impracticable, 
 unsatisfactory or inconclusive (rt'). The concurrence, 
 moreover, of a plurality of characteristic tests, 
 separately fallacious, but fallacious from different 
 causes, may, in connection with strong moral facts, 
 yield a result of so high a degree of probability as 
 
 {c) The Editor is indebted to Dr. Dupre, F.R.S., for the following 
 note : — 
 
 " As regards chemical processes the case can be stated definitely, 
 since, in the case of some vegetable poisons, even under the most 
 favourable conditions, chemical methods alone would not enable us 
 to determine, with any certainty, the particular poison present. 
 
 " With regard to physiological methods the case is somewhat 
 different. Under favourable conditions, i.e. a relatively large dose of 
 poison administered, speedy death of the person poisoned, and the 
 examination begun soon after death, there is, probably, no vegetable 
 poison which could not then be identified by physiological tests, aided 
 by chemical processes. When, however, the amount of poison given 
 is small, only just sufficient to cause death, when the person has 
 sui'vived for some time after the administration of the poison, and, 
 lastly, the examination is begun some length of time after death, even 
 physiological methods might, and probably would, fail to identify the 
 poison." 
 
 id) Rexv. Dotiellan, pp. 324-331, ijifra ; Reg. v. Sjiieihurst {set last 
 paj^e) ; Reg. v. Palmer, pp. 344-351, infra.
 
 IN CASES OF POISONING. 313 
 
 to be perfectly convincing, though the poison has 
 not been reproduced (e). 
 
 It would be most unreasonable, therefore, and 
 lead to the grossest injustice, and in some circum- 
 stances to impunity for the worst of crimes, to 
 require, as an imperative rule of law, that the fact 
 of poisoning shall be established by any special and 
 exclusive medium of proof, when that kind of proof 
 is unattainable, and especially if it has been rendered 
 so by the act of the offender himself. No universal 
 and invariable rule, therefore, can be laid down ; 
 and every case must depend upon its own particular 
 circumstances ; and as, in all other cases, the corptis 
 delicti must be proved by the best evidence which 
 is capable of being adduced, and by such an amount 
 and combination of relevant facts, whether direct or 
 circumstantial, as establish the factum probanduni 
 to a moral certainty, and to the exclusion of every 
 other reasonable hypothesis. 
 
 Tawell's case, which has been referred to more 
 than once in these pages, is a useful illustration of 
 the kind of evidence necessary to prove the corpus 
 delicti, and contains an exhaustive summing-up of 
 Mr. Baron Parke as to the duties of a jury in cases 
 of this kind. The prisoner was tried at the Ayles- 
 bury Spring Assizes, 1845, ^O'' the murder of Sarah 
 Hart by poisoning her with prussic acid. The 
 deceased woman entered the prisoner's service 
 shortly before the death of his first wife, and when 
 
 {e) Rex V. Elder, Syme's Justiciary Rep. 71, at p. 108 ; and see 
 Rex V. Dontmll, pp. 331-336, ift/ra.
 
 314 PROOF OF THE CORPUS DELICTI 
 
 she left his service was pregnant by him, and 
 eventually bore him two children. At the time of 
 the murder she was residing in a small cottage at 
 Slough, and was receiving ^13 a quarter from the 
 prisoner, which was her only means of support. 
 The prisoner had married a second wife, and was 
 living in apparent comfort and respectability at 
 Berkhampstead, though his account with his bankers 
 was overdrawn. On the ist of January, Sarah 
 Hart's next-door neighbour, hearing screams, came 
 out of her cottage, walked down the garden path, 
 and went to the garden gate of the deceased 
 woman's cottage, where she met the prisoner coming 
 out of the gate, evidently agitated and in haste. It 
 being dark, she was carrying a candle, and looked 
 at the prisoner and passed a remark to him ; and at 
 the trial swore to his identity. He hurried on 
 towards Slough, and she went into the cottage 
 where she found the deceased woman on the floor 
 moaning ; by the time a doctor was fetched she 
 was dead. It was proved that shortly before this 
 the woman was quite well, and had fetched a bottle 
 of porter from a neighbouring house, and had 
 borrowed a corkscrew. The bottle was in the 
 room open, and two tumblers had been used. It 
 was proved that on a previous occasion, when she 
 had taken porter with the prisoner, she was taken 
 suddenly ill. The woman's stomach was taken to 
 London, and after tests for oxalic acid and other 
 poisons had been applied, prussic acid was found, 
 and the medical witnesses came to the conclusion 
 that she had died of prussic acid poisoning. At 
 that time it was not known that the prisoner was in
 
 IN CASES OF POISONING. 315 
 
 the habit of buying prussic acid ; but it was proved 
 on the trial that on the day of the murder he had 
 bought two drachms of Scheele's prussic acid in 
 Bishopsgate Street, bringing his own bottle to be 
 filled, but taking it away in another bottle ; also 
 that on the following day he had none, for he went 
 back to the shop and said he had lost it, and had 
 the bottle which he had left the previous day filled. 
 When arrested he declared that he had not been to 
 Slough. 
 
 The defence was largely based on the fact that 
 the prisoner bought prussic acid for external appli- 
 cation for varicose veins — which appeared to be true, 
 so far as it went — that there was no proof that the 
 woman died from the effects of prussic acid, and 
 that its presence was due to the pips of apples 
 which she had eaten. But it was proved by the 
 medical men that prussic acid could not be obtained 
 from food by natural digestion, but only by distilla- 
 tion, and, as the learned judge pointed out to the 
 jury, the peculiar smell of prussic acid was noticed 
 in the stomach before it could have been set free 
 by distillation. It was strenuously urged by the 
 counsel for the prisoner that it was a rule of law 
 that there ought to be positive proof of the 7node of 
 death, and that such a quantity of poison must be 
 found in the body of the deceased as would 
 necessarily occasion death. But this doctrine was 
 peremptorily repudiated by Mr. Baron Parke, who 
 told the jury : " If the evidence satisfies you that the 
 death was occasioned by poison, and that that poison 
 was administered by the prisoner — if that is proved 
 by circumstantial evidence, it is not necessary to
 
 J 
 
 1 6 PROOF OF THE CORPUS DELICTI 
 
 give direct and positive proof of what is the quantity 
 which woLikl destroy hfe, nor is it necessary to 
 prove that such a quantity was found in the body of 
 the deceased, if the other facts lead you to the con- 
 clusion that the death was occasioned by poison, 
 and that it was knowinirly administered by the 
 prisoner. You must take this fact, just the same as 
 all the other parts of the case, and see if you are 
 satisfied, as reasonable men, whether the prisoner is 
 guilty or not. The only fact which the law requires 
 to be proved by direct and positive evidence is the 
 death of the party, by finding the body ; or when 
 such proof is absolutely impossible, by circum- 
 stantial evidence leading closely to that result — as 
 where a body was thrown overboard far from land — 
 when it is quite enough to prove that fact without 
 producing the body." 
 
 His Lordship, in a subsequent part of his charge, 
 said . " There is very reasonable evidence — sup- 
 posing that to be required, which I tell you is 
 not — that the quantity of prussic acid in the 
 stomach amounted to one grain ; and although 
 that is not necessary to be proved, the scientific 
 evidence shows that one grain may be enough to 
 destroy life." In reference to the argument urged 
 by the prisoner's counsel, that the deceased might 
 have died from some sudden emotion, the learned 
 Judge said that it was within the range of possi- 
 bility that a person might so die without leaving 
 any trace on the brain ; they, however, were to 
 judge whether they could attribute death to that 
 cause, if they found strong evidence of the presence 
 of poison ; because they were not to have recourse
 
 IN CASES OF POISONING. 317 
 
 to mere conjecture ; that, where the result of the 
 evidence gave them the existence of a cause to 
 which it might be rationally attributed, they were 
 not to suppose, with(3Ut any reason for doing so, 
 that it was to be attributed to any other cause (f). 
 
 Lord Campbell, in Palmer's case, said that it was 
 not to be expected that witnesses should be called 
 to state that they saw the deadly poison ad- 
 ministered by the prisoner, or mixed up by the 
 prisoner openly before them. Circumstantial evi- 
 dence, as to that, continued the learned Judge, is all 
 that can be reasonably expected ; and if there were 
 a series of circumstances leading to the conclusion 
 of guilt, a verdict of guilty might satisfactorily be 
 pronounced {g). With respect to the consideration 
 that no strychnia was found in the body, it was for 
 them to consider ; but there was no rule of law ac- 
 cording to which the poison must be found in the 
 body of the deceased, and all that they knew 
 respecting the poison not being in the body was, 
 that in that part of the body that w^as analysed by 
 the witnesses no strychnia had been found (/^). 
 
 5. Of the various heads of evidence in charges 
 of poisoning, that of moral conduct is of most 
 general interest. The data of physiological and 
 pathological and chemical science must always be 
 matter of opinion testified to by skilled witnesses ; 
 whereas, in the forensic discussion of moral facts, 
 appeal is necessarily made to those psychological 
 
 (/) Shorthand Report ; for references see p. 84, supra, 
 {g) Official Shorthand Report, 1856, p. 308. 
 Ih) lb. pp. 319-396.
 
 3l8 PROOF OF THE CORPUS DELICTI 
 
 principles of our nature which i^ive them pertinence 
 and significance, and upon which intelligent persons 
 are capable of forming a more or less trustworthy 
 judgment. It would be absurd to suppose that 
 such facts, when clearly connected by adequate in- 
 dependent evidence with a corpus delicti^ are simply 
 fortuitous and phenomenal ; on the contrary, they 
 are the natural and unmistakable manifestations of 
 the secret workings of the mind, not only throwing 
 light upon and bringing into relief the character of 
 the act itself, but tending also to discriminate the 
 individual guilty actor. His necessities, his anti- 
 pathies, or other motives, his reluctance to permit 
 examination of the body, or its contents or excreta, 
 or of other suspected matter — his contrivances to 
 prevent it, his attempts to tamper with the witnesses 
 or the officers of justice, or with such suspected 
 matter, or with any other article of real evidence — 
 his falsehoods, subterfuges, and evasions — these and 
 many other circumstances constitute most material 
 explanatory parts of the res gestce, and afford 
 relevant and frequently conclusive evidence, from 
 which his guilt may be inferred. 
 
 In most criminal charges, the evidence of the 
 corpus delicti is separable from that which applies to 
 the indication of the offender ; but in cases of 
 poisoning, it is often impossible to obtain conclusive 
 evidence of the corpzis delicti, irrespectively of the 
 explanatory evidence of moral conduct ; and Mr. 
 justice BuUer, in Donellan's case, told the jury that 
 ** if there was a doubt upon the evidence of the phy- 
 sical witnesses, they must take into their considera-
 
 IN CASES OF POISONING. 3^9 
 
 tion all the other circumstances, either to show that 
 there was poison administered, or that there was 
 not, and that every part of the prisoner's conduct 
 was material to be considered " (/). So in Donnall s 
 case, Mr. Justice Abbott, in summing up, said to the 
 jury that there were two important questions : first, 
 did the deceased die of poison ? and if they should 
 be of opinion that she did, then, whether they were 
 satisfied from the evidence that the poison was 
 administered by the prisoner or by his means ? 
 There were some parts of the evidence which ap- 
 peared to him equally applicable to both questions, 
 and those parts were what related to the conduct of 
 the prisoner during the time of the opening and 
 inspection of the body ; his recommendation of a 
 shell and the early burial ; to which might be added 
 the circumstances, not much to be relied upon, 
 relative to his endeavours to evade his apprehension. 
 His Lordship also said, as to the question whether 
 the deceased died by poison, " in considering what 
 the medical men have said upon the one side and the 
 other, you must take into account the conduct of the 
 prisoner in urging a hasty funeral, and his conduct 
 in throwing away the contents of the jug into the 
 chamber utensil " (jk). 
 
 The Lord Chief Justice Lord Campbell, in 
 his charge to the jury in Palmer's case, said that 
 " in cases of this sort the evidence had often 
 
 (/) Gurney's Shorthand Report, p. 53 ; see p. 37, supra. A full 
 account of the case is given at pp. 324-331, infra. 
 
 ik) Frazer's Shorthand Report, pp. 127, 177. See pp. 331-336, i7i/ra 
 where a full account of this case is given
 
 320 PROOF OF THE CORPUS DELICTI 
 
 been divided into medical and moral evidence ; the 
 medical being" that of the scientific men, and the 
 moral the circumstantial facts which are calculated 
 to prove the truth of the charge against the party 
 accused. They cannot," he continued, " be finally 
 separated in the minds of the jury, because it is by 
 the combination of the two species of evidence that 
 their verdict ought to be found. In this case you 
 will look at the medical evidence to see whether 
 the deceased, in your opinion, did die by strychnia 
 or by natural disease ; and you will look at what is 
 called the moral evidence, and consider whether 
 that shows that the prisoner not only had the 
 opportunity, but that he actually availed himself of 
 that opportunity, to administer to the deceased the 
 deadly poison of which he died " (/), His Lordship 
 also said " It is impossible that you should not pay 
 attention to the conduct of the prisoner, and there 
 are some instances of his conduct as to which you 
 will say whether they belong to what might be 
 expected from an innocent or a guilty man. He was 
 eager to have the body fastened down in the coffin. 
 Then with r'^gfard to the bettingr-book, there is cer- 
 tainly evidence from which you may infer that he 
 did get possession of the deceased's betting-book, 
 and that he abstracted it and concealed it. Then, 
 you must not omit his conduct in trying to bribe the 
 post-boy to overturn the carriage in which the jar 
 was being conveyed to be analysed in London, and 
 from which evidence might be obtained of his guilt. 
 Again, you find him tampering with the post-master, 
 and procuring from him the opening of a letter, from 
 
 (/) Reg. V. Palmer, p. 344, in^ra. Shorthand Report, p. 308.
 
 IN CASES OF POISONING. 32 1 
 
 the person who had been examining the contents of 
 the jar to the attorney employed in the case. And 
 then, you have tampering with the coroner, and an 
 attempt to induce him to procure a verdict from the 
 coroner's jury, which would amount to an acquittal. 
 These are serious matters for your consideration, 
 but you, and you alone, will say what inference is to 
 be drawn from them. If not answered, they cer- 
 tainly present a serious case for your considera- 
 tion " (;;/). 
 
 Among the most important circumstances of 
 moral conduct, and in analogy with the rules which 
 prevail in the proof of the corpus delicti in other 
 cases, may be mentioned former acts of poisoning, 
 or attempts to poison, whether the same individual, 
 or other members of the same family, where such 
 successive administrations throw light upon the 
 particular act which forms the subject of inquiry. 
 On a trial for murder by the administration of 
 prussic acid in porter, evidence was admitted that 
 the deceased had been taken ill several months 
 before, after partaking of porter with the prisoner (72). 
 And upon the trial of a woman for the murder of 
 her husband by arsenic in September, evidence was 
 admitted of arsenic having been taken by two of 
 her sons, one of whom died in December, and the 
 other in March following, and also by a third son, 
 who took arsenic in April following, but did not die. 
 Evidence was also admitted of a similarity of sym- 
 ptoms in the four cases, that the prisoner lived in the 
 same house with her husband and sons, and pre- 
 
 (;«) Shorthand Report p. 320. («) Reg. v. Tawell, pp. 313-317, supra, 
 
 C.E. y
 
 32 2 PROOF OF THE CORPUS DELICTI 
 
 pared tVieir tea, cooked their victuals, and distributed 
 them to the four parties. Lord Chief Baron Pollock 
 said his oj-)inion was that evidence was receivable 
 that the deaths of two sons, and the illness of the 
 third, proceeded from the same cause, namely, 
 arsenic. The tendency of such evidence, he said, 
 was to prove, and to confirm the proof already 
 given, that the death of the husband, whether 
 felonious or not, was occasioned by arsenic. In 
 that case he thought it wholly immaterial whether 
 the deaths of the sons took place before or after 
 the death of the husband. The domestic history of 
 the family during the period that the four deaths 
 occurred, was also receivable in evidence to show 
 that during that time arsenic had been taken by four 
 members of it, with a view to enable the jury to 
 determine whether such taking was accidental or 
 not. The evidence, he said, was not inadmissible, 
 by reason of its tendency to prove, or to create a 
 suspicion of a subsequent felony. His Lordship, 
 after taking time to consider, refused to reserve 
 the point for the opinion of the Judges, under 
 II & 12 Vict. c. 78, and stated that Mr. Baron 
 Alderson and Mr. Justice Talfourd concurred in 
 opinion with him {0). 
 
 But, nevertheless, moral facts apparently calculated 
 to create the greatest suspicion may not be really 
 
 {0) Reg. V. Geering, i8 L. J. M. C. 215 ; approved in a recent case 
 before the Privy Council : Makm v. The A. G. for New South Wales, 
 1894, App. Cas. 57. Cf. 3.\so Reg. v. Francis, L.R. 2 C.C. 128, and 
 Reg. v. Flanftagaft, 15 Cox, 403 (murder by arsenical poisoning), and 
 other cases upon this subject cited and discussed in Archbold's 
 Criminal Pleading (22nd ed.), pp. 283-287. See also note to Ch. iiu 
 s. 2, p. 63, supra.
 
 IN CASES OF POISONING. 323 
 
 of a suspicious nature, or may be too fallacious and 
 uncertain to justify conviction, especially where the 
 corpus delicti is matter of inference only, and not 
 established by independent evidence. Justice re- 
 quires that such facts should be interpreted in a 
 spirit of candour, and with proper allowance for the 
 weaknesses of men who may be suddenly placed 
 in circumstances of suspicion and difficulty. It is 
 well known, for example, that many persons, more 
 especially in the humbler classes, feel great repug- 
 nance to permit the bodies of their friends to be 
 subjected to anatomical examination. The mani- 
 festation of such repugnance is a fact to be taken 
 into account like all other facts. But althouQfh in 
 the case of violent or sudden death, and particu- 
 larly when caused by poison, it must be known that 
 the post-7noi'tem examination is of the highest im- 
 portance, it by no means follows that objection to 
 permit such examination proceeds from the con- 
 sciousness of guilt. In a case of this kind, Mr. 
 Baron Rolfe said that the question was, from what 
 motive the reluctance arose ? On the one hand, it 
 was suggested that it was because the prisoner did 
 not wish the cause of his wife's death to be in- 
 vestigated, being afraid it would be discovered that 
 she had died from arsenic ; on the other, that his 
 reluctance arose from his horror of the notion of 
 his wife's dead body being taken up, and exposed 
 to the investio-ation of the surgeons, at which the 
 feelings were apt to revolt. Many persons, no 
 doubt, felt very great horror at the notion of such 
 thino^s beino- clone to themselves, or those connected 
 with them ; whilst others, again, were indifferent 
 
 Y 2
 
 324 PROOF OF THE CORPUS DELICTI 
 
 on the subject, leaving their own bodies to be 
 dissected. P)iJt few persons liked to have their 
 wives or their daughters so exposed ; the prisoner, 
 said the learned Judge, might not be one of those 
 few, and his feelings on that subject might have 
 prompted the remark alleged against him ; and 
 surely he must have known that any reluctance 
 expressed by him to an inquiry, or wish to stop it, 
 would only tend to make those, who were about to 
 make it, persevere (/). 
 
 It happens of necessity that in every case of the 
 kind under discussion there is a concurrence of 
 evidence derived, if not from all, at least from 
 several of the sources which have been mentioned ; 
 so that the strength of the conviction finally pro- 
 duced depends not merely upon the sum of the 
 separate forces, but upon that superior force ana- 
 logous to a geometrical progression, which is the 
 consequence of their combination. 
 
 An analysis of some of the most remarkable 
 recorded cases of criminal poisoning which have 
 occurred in our judicial annals, will form an interest- 
 ing commentary upon the general rules of evidence, 
 more especially in their application to the inter- 
 pretation of moral inculpatory facts. 
 
 John Donellan, Esq., was tried at Warwick spring 
 assizes, 1781, before Mr. Justice Buller, for the 
 murder of Sir Theodosius Boughton, his brother- 
 in-law, a young man of fortune, twenty years of 
 
 (Ji) Reg V. Graham^ pp. 297-300, supra.
 
 IN CASES OF POISONING. 325 
 
 age, who up to the moment of his death had been 
 in good health and spirits, with the exception of 
 a trifling local ailment, for which he occasionally 
 took a laxative draught. Mrs. Donellan was the 
 sister of the deceased, and together with Lady 
 Boughton his mother lived with him at Lawford 
 Hall, the family mansion. On attaining twenty- 
 one. Sir Theodosius would have been entitled 
 absolutely to an estate of ^2,000 per annum, the 
 greater part of which, in the event of his dying 
 under that age, would have descended to the 
 prisoner's wife. For some time before the death of 
 Sir Theodosius, the prisoner had on several 
 occasions falsely represented his health to be very 
 bad, and his life to be precarious, and not worth a 
 year's purchase, though to all appearance he was 
 well and in good health. On the 29th of August 
 the apothecary in attendance sent him a mild and 
 harmless draught, to be taken the next morning. 
 In the evening the deceased was out fishing, and 
 the prisoner told Lady Boughton that he had 
 been out with him, and that he had imprudently 
 got his feet wet, both of which statements were 
 false. 
 
 When called the following morning he was in 
 good health ; and about seven o'clock his mother 
 went to his chamber for the purpose of giving 
 him his draught, which was kept — at the prisoner's 
 suggestion, made after Sir Theodosius had on one 
 occasion complained of forgetting to take it — upon 
 the open shelf of his outer room, instead of locked 
 up in his closet as formerly. On taking the 
 draught on this occasion he observed that it smelt
 
 326 PROOF OF THE CORPUS DELICTI 
 
 and tasted very nauseous, and Lady Boughton re- 
 marked that she thought it smelt very strongly like 
 bitter almonds. In about two minutes he struggled 
 very much, as if to keep the medicine down, and 
 Lady Boughton observed a gurgling in his stomach ; 
 in ten minutes he seemed inclined to doze, but in 
 five minutes afterwards she found him with his 
 eyes fixed, his teeth clenched, and froth running 
 out of his mouth, and within half an hour after 
 taking the draught he died. Lady Boughton ran 
 downstairs to give orders to a servant to go for the 
 apothecary, who lived about three miles distant ; 
 and in less than five minutes the prisoner came into 
 the bedroom, and after she had given him an ac- 
 count of the manner in which Sir Theodosius had 
 been taken, he asked where the physic-bottle was, 
 and she showed him the two bottles. The prisoner 
 then took up one of them and said, " Is this it ? " 
 and being answered '* Yes," he poured some water 
 out of the water-bottle, which was near, into the 
 phial, shook it, and then emptied it into some dirty 
 water, which was in a washhand basin. Lady 
 Boughton said, " You should not meddle with the 
 bottle " ; upon which the prisoner snatched up the 
 other bottle and poured water into that also, and 
 shook it, and then put his finger to it and tasted it. 
 Lady Boughton again asked what he was about, 
 and said he ought not to meddle with the bottles ; 
 on which he replied, he did it to taste it, though he 
 had not tasted the first bottle. The prisoner 
 ordered a servant to take away the basin, the dirty 
 things, and the bottles, and put the bottles into her 
 hands for that purpose ; she put them down again,
 
 IN CASES OF POISONING. 327 
 
 on being directed by Lady Bough ton to do so, but 
 subsequently, while Lady Boughton's back was 
 turned, removed them on the peremptory order of 
 the prisoner. 
 
 On the arrival of the apothecary the prisoner 
 said the deceased had been out the preceding 
 evening fishing, and had taken cold ; but he said 
 nothing of the draught which he had taken. The 
 prisoner had a still in his own room, which he 
 had used for distilling roses, and a few days after 
 the death of Sir Theodosius he brought it full of 
 wet lime to one of the servants to be cleaned. The 
 prisoner made several false and inconsistent state- 
 ments to the servants and others as to the cause of 
 the young man's death, attributing it at one time to 
 his having been out late fishing, and getting his feet 
 wet, and at another to the bursting of a blood-vessel, 
 and again to the malady for which he was under 
 treatment, and the medicine given to him. On the 
 day of his death he wrote to Sir William Wheeler, 
 Sir Theodosius's guardian, to inform him of the event, 
 but made no reference to its suddenness. The coffin 
 was soldered up on the fourth day after the death. 
 Two days afterwards. Sir William, in consequence 
 of the rumours which had reached him of the 
 manner of his ward's death, and that suspicions 
 were entertained that he had died from the effect 
 of poison, wrote a letter to the prisoner, requesting 
 that an examination might take place, and men- 
 tioning the gentlemen by whom he wished it to be 
 conducted. He accordingly sent for them, but did 
 not exhibit Sir William Wheeler's letter alluding to 
 the suspicion that the deceased had been poisoned,
 
 328 PROOF OF THE CORPUS DELICTI 
 
 nor did he mention to them that they were sent for 
 at his request. Having been induced by the 
 prisoner to suppose the case to be one of ordinary 
 sudden death, and finding the body in an advanced 
 state of putrefaction, the medical gentlemen declined 
 to make the examination, on the ground that it 
 might be attended with personal danger. On the 
 following day, a medical man, who had heard of their 
 refusal to examine the body, offered to do so ; but 
 the prisoner declined his offer, on the ground that 
 he had not been directed to send for him. On the 
 same day the prisoner wrote to Sir William a letter, 
 in which he stated that the medical men had fully satis- 
 fied the family, and endeavoured to account for the 
 event by the ailment under which the deceased had 
 been suffering ; but he did not state that they had 
 not made the examination. Three or four days after- 
 wards. Sir William, having been informed that the 
 body had not been examined, wrote to the prisoner 
 insisting that it should be done ; which, however, he 
 prevented, by various disingenuous contrivances, and 
 the body was interred without examination 
 
 In the meantime, the circumstances having become 
 known to the coroner, he caused the body to be dis- 
 interred, and examined on the eleventh day after 
 death. Putrefaction was found to be far advanced ; 
 the head was not opened, nor the bowels examined, 
 and in other respects the examination was incomplete. 
 When Lady Boughton, in giving evidence before 
 the coroner's inquest, related the circumstance of the 
 prisoner having rinsed the bottles, he was observed 
 to take hold of her sleeve, and endeavour to check 
 her ; and he afterwards told her that she had no
 
 IN CASES OF POISONING. 329 
 
 occasion to have mentioned that circumstance, but 
 only to answer such questions as were put to her; 
 and in a letter to the coroner and jury, he 
 endeavoured to impress them with the beHef that 
 the deceased had inadvertently poisoned himself with 
 arsenic, which he had purchased to kill fish. Experi- 
 ments made by the administration of laurel-water on 
 various animals produced convulsions and sudden 
 death, and on opening one of them a strong- smell of 
 laurel-water was perceived. 
 
 Upon the trial, four medical men, three phy- 
 sicians, and an apothecary, were examined on 
 the part of the prosecution, and expressed a 
 very decided opinion — mainly grounded upon the 
 symptoms, the suddenness of the death, the post- 
 viorieni appearances, the smell of the draught, 
 as observed by Lady Boughton, and the similar 
 effects produced by experiments upon animals — that 
 the deceased had been poisoned with laurel-water ; 
 and one of them stated that, on opening the body, he 
 had been affected with a peculiar acrimonious, biting 
 sensation in the hands and mouth, like that which 
 affected him in all the subsequent experiments with 
 laurel-water. An eminent surgeon and anatomist, 
 examined on the part of the prisoner, stated a 
 positive opinion that the symptoms did not neces- 
 sarily lead to the conclusion that the deceased 
 had been poisoned, and that the appearances 
 presented upon dissection indicated nothing but 
 putrefaction. 
 
 Mr. Justice Duller, in his charge to the jury, 
 called their attention to the suddenness of the death 
 immediately after the administration of the draught
 
 2,2,0 PROOF OF THE CORPUS DELICTI 
 
 — to the opinions of the medical witnesses that there 
 was nothing to lead them to attribute death to any 
 Other cause than that draught ; to the prisoner's 
 misrepresentations as to the deceased's state of 
 health at a time when he appeared to others to be 
 in good health and spirits ; to his contrivances to 
 prevent the examination of the body, and emphati- 
 cally to the fact of his having rinsed out the bottle 
 from which the draught had been taken, " which," 
 said the learned Judge, " does carry with it strong 
 marks of knowledge by him that there was some- 
 thing in that bottle which he wished should never 
 be discovered " ; and, finally, to his attempts to 
 check the witness who spoke to that circumstance 
 while giving her evidence before the coroner. The 
 prisoner was convicted and executed (^). 
 
 This trial has given rise to much difference of 
 opinion. Certainly the medical evidence was un- 
 satisfactory, and there was no evidence to prove that 
 the prisoner had been distilling laurel-water or to 
 connect him with the fatal draught, although it was 
 proved that he had a still in which he used to distil 
 roses. But the manner in which death occurred, at 
 the very instant of taking the draught, was all but 
 conclusive that it contained some poisonous ingre- 
 dient which was the cause of death ; and though this 
 fact alone would not have excluded the hypothesis 
 of a sudden death from accident or natural 
 cause, its conjunction with so many circumstances 
 of moral conduct of deep inculpatory import could 
 admit of explanation only on the hypothesis of the 
 (g) Shorthand Report by Gurney, 1781. See p. ^7^ supra.
 
 IN CASES OF POISONING. 33 1 
 
 prisoner's guilt. It is impossible to regard those 
 circumstances in any other light than as the neces- 
 sary indications, on the ordinary principles of human 
 nature, of the moral causal origin of the fatal 
 catastrophe (r). 
 
 Robert Sawle Donnall, a surgeon and apothe- 
 cary, was tried at Launceston spring assizes, 1817, 
 before Mr. Justice Abbott, for the murder of Mrs. 
 Elizabeth Downing, his mother-in-law. 
 
 The prisoner and the deceased were next-door 
 neighbours, and lived upon friendly terms ; and there 
 was no suggestion of malice, nor could any motive be 
 assigned which could have induced the prisoner to 
 commit such an act, except that he was in somewhat 
 straitened circumstances, and in the event of his 
 mother-in-law's death would have become entitled 
 to a share of her property. On the 19th of October 
 the deceased drank tea at the prisoner's house, which 
 was handed to her by him, and returned home much 
 indisposed, retching and vomiting, with a violent 
 cramp in her legs, from which she did not recover 
 for several days. About a fortnight afterwards, after 
 returning from church, and dining at home on boiled 
 rabbits smothered with onions, upon the invitation 
 of her daughter she drank tea in the evening at the 
 prisoner's house with a family party. The prisoner 
 on this occasion also handed to the deceased cocoa and 
 bread and butter, proceeding towards her chair by a 
 
 (r) The account of this case in The Theory of Presumptive Proof 
 (London, 181 5) suppresses many of the most important facts, and is 
 in other respects partial, garbled, and inaccurate ; the strictures upon 
 the trial are most unfair, and the book itself is utterly unworthy of the 
 author to whom it is commonly ascribed.
 
 332 PROOF OF THE CORPUS DELICTI 
 
 circuitous route ; but it was stated to have been his 
 habit to serve his visitors himself, and not to allow 
 them to rise from their chairs. When Mrs. Downing 
 haddrunkabouthalf of her second cu}), she complained 
 of sickness and went home, where she was seized 
 with retching and vomiting, attended with frequent 
 cramps ; and then a violent purging took place, 
 and at ei":ht o'clock the next mornintr she died. 
 None of the other persons who had been present 
 on either of these occasions were taken ill. To a 
 physician called in by the prisoner two or three 
 hours before her death, he stated that she had had 
 an attack of cJiolera morbus. The nervous coat of 
 the stomach was found to be partially inflamed or 
 stellated in several places, and the villous coat was 
 softened by the action of some corrosive substance ; 
 the blood-vessels of the stomach were turgid, and 
 the intestines, particularly near the stomach, in- 
 flamed. The contents of the stomach were placed 
 in a jug, in a room to which the prisoner (to whom 
 at that time no suspicion attached) had access, for 
 examination ; but he clandestinely threw them into 
 another vessel containing a quantity of water. The 
 prisoner proposed that the body should be interred 
 on the following Wednesday, assigning as a reason 
 for so early an interment that from the state of the 
 corpse there would be danger from keeping it 
 longer — a statement for which there was no founda- 
 tion. He also evinced much easferness to accelerate 
 the funeral, urging the person who had the charge of 
 it, and the men who were employed in making the 
 vault, to unusual exertions. 
 
 The physician called in to the deceased con-
 
 IN CASES OF POISONING. 333 
 
 cUidecl from the symptoms, the shortness of the 
 ilhiess, and the morbid appearances, that she had 
 died from the effects of some active poison ; and 
 in order to discover the particular poison sup- 
 posed to have been used, he appHed to the con- 
 tents of the stomach the tests of the ammoniacal 
 sulphate of copper, or common blue vitriol, and 
 the ammoniacal nitrate of silver, or lunar caustic, in 
 solution, which severally yielded the characteristic 
 appearances of arsenic, the sulphate of copper pro- 
 ducing a green precipitate, whereas a blue precipitate 
 is formed if no arsenic is present, and the nitrate of 
 silver producing- a yellow precipitate, instead of a 
 white precipitate, which is thrown down if no arsenic 
 is present. He stated that he considered these 
 tests conclusive and infallible, and that he had used 
 them because they would detect a minute portion 
 of arsenic ; on which account he considered them 
 to be more proper for the occasion, as, from the 
 smallness of the quantity, from the frequent vomit- 
 ings and purgings, and the appearance of the tests, 
 he found there could not be much. Concludinpf 
 that bile had been taken into the stomach, he mixed 
 some bile with water, and applied to the mixture 
 the same tests, but found no indication of the 
 presence of arsenic ; from which he inferred that 
 the presence of bile would not alter the conclusion 
 which he had previously drawn. Having been 
 informed that the deceased had eaten onions, he 
 boiled some in water ; and after pouring off the 
 water in which they were boiled, he poured boiling 
 water over them and left them standing for some 
 time, after which he applied the same tests to the
 
 334 PROOF OF THE CORPUS DELICTI 
 
 solution thus procured, and ascertained that it did 
 not produce the characteristic appearances of arsenic. 
 The witness, upon his cross-examination, admitted 
 that the symptoms and appearances were such as 
 might have been occasioned by some other cause 
 than poisoning ; that the reduction test would have 
 been infallible ; and that it might have been adopted 
 in the first instance, and might also have been tried 
 upon the matter which had been used for the other 
 experiments. Upon his re-examination he accounted 
 for his omission of the reduction test by stating that 
 the quantity of matter left after the frequent vomit- 
 ings and the other experiments would have been 
 too small, and that it would not have been correct 
 to use the matter which had been subjected to the 
 preceding experiments. 
 
 Several medical witnesses, called on the part of 
 the prisoner, stated that the symptoms and morbid 
 appearances, though they were such as might and 
 did commonly denote poisoning, did not exclude 
 the possibility that death might have been occa- 
 sioned by cholera morbus or some other disease ; 
 that the tests which had been resorted to were 
 fallacious, since they had produced the same charac- 
 teristic appearances upon their application to inno- 
 cent matter, namely, the sulphate of copper a green, 
 and the nitrate of silver a yellow precipitate, on 
 being applied to an infusion of onions ; and that the 
 experiment with the bile was also fallacious, since, 
 from the presence of phosphoric acid, which is con- 
 tained in all the fluids of the human body, the same 
 coloured precipitate would be thrown down by putting 
 lunar caustic into a solution of phosphate of soda.
 
 IN CASES OF POISONING. 335 
 
 The learned Judge, in his charge to the jury, 
 said that none of the evidence of the witnesses for 
 the prisoner went to show that the tests employed 
 by the medical witnesses on the other side would 
 not prove that arsenic was there if it were really 
 there ; that the experiments made by the witnesses 
 for the prisoner were made with onions in a different 
 state from what onions boiled with rabbits are, 
 as by that mode could be got a great portion of the 
 juice or strength of the onions, in water, whereas in 
 regard to onions prepared for the table, or boiled 
 with a considerable quantity of water, a good por- 
 tion of their juice is withdrawn from them ; that as 
 to the experiment with the bile, if there were no 
 phosphoric acid in the stomach of the deceased, or 
 no quantity of it sufficient to produce that appear- 
 ance, whatever might have been the appearance if 
 sufficient were put in, then the experiment was 
 tried on something that did not contain a sufficient 
 quantity of that matter ; that although the same 
 result might be produced by that matter, if there, 
 yet if there is no reason to suppose that that matter 
 was there or there in sufficient quantity, then he 
 thought the suspicion that arsenic was there was 
 very strong. His Lordship also said : "If the evi- 
 dence as to the opinions of the learned persons who 
 have been examined on both sides should lead you 
 to doubt whether you should attribute the death of 
 the deceased to arsenic having been administered 
 to her, or to the disease called c/iolei'a morbus — 
 then, as to this question as well as to the other 
 question, the conduct of the prisoner is most material 
 to be taken into consideration ; for he, being a
 
 2;^6 PROOF OF THE CORPUS DELICTI 
 
 medical man, could not be ignorant of many thinirs 
 as to which ignorance might be shown in other 
 persons : he could hardly be ignorant of the proper 
 mode of treating chole7'-a morbus ; he could not be 
 ignorant that an early burial was not necessary ; 
 and when an operation was to be performed in order 
 to discover the cause of the death, he should not 
 have shown a backwardness to acquiesce in it ; and 
 when it was performing, and he attending, he could 
 not surely be ignorant that it was material for the 
 purposes of the investigation that the contents of 
 the stomach should be preserved for minute ex- 
 amination " (5). His Lordship also said: "The 
 conduct of the prisoner, his eagerness in causing 
 the body to be put into a shell, and afterwards 
 to be speedily interred, was a circumstance most 
 material for their consideration, with reference to 
 both the questions he had stated ; for although the 
 examination of the body in the way set forth, and 
 the experiments that were made, might not lead to 
 a certain conclusion as to the charge stated, that the 
 deceased got her death by poison administered to 
 her by the prisoner, yet if the prisoner as a medical 
 man had been so wicked as to administer that 
 poison, he must have known that the examination 
 of the body would divulge it " (/). Notwithstanding 
 this adverse charge of the learned Judge, the 
 prisoner was acquitted. 
 
 A medical man was tried for the murder of his 
 wife, by the administration of prussic acid. They 
 left their place of residence at Sunderland on a 
 
 (j) Shorthand Report by Frazer (1817), p. 161. (/) Ibid. p. 170.
 
 IN CASES OF POISONING. 337 
 
 journey of pleasure to London, where they arrived 
 on the 4th of June, and went into lodgings. On 
 the morning of the 8th, being the Saturday after 
 their arrival in town, the prisoner rang the bell for 
 some hot water, a tumbler and a spoon, and he and 
 his wife were heard conversing in their chamber. 
 About a quarter before eight he called the landlady 
 upstairs, saying that his wife was very ill ; the land- 
 lady found her lying motionless on the bed, with her 
 eyes shut and her teeth closed, and foaming at the 
 mouth. The prisoner said she had had fits before, 
 but none like this, and that she would not come out 
 of it ; and on being urged to send for a doctor, he 
 said he was a doctor himself, that he should have 
 let blood before, but that there was no pulse, that 
 this was an affection of the heart, and that her 
 mother died in the same way nine months before ; 
 and he put her feet and hands in warm water, and 
 applied a mustard plaster to her chest. In the 
 meantime a medical man was sent for, but she died 
 before his arrival. There was a tumbler close to the 
 head of the bed, about one-third full of a clear white 
 fluid, and an empty tumbler on the other side of the 
 table, and a paper of Epsom salts. In reply to a 
 question from the medical man, the prisoner stated 
 that the deceased had taken nothing but a little 
 salts. On the same morning he ordered a grave 
 for interment on the Tuesday following. 
 
 The contents of the stomach were found to contain 
 prussic acid and Epsom salts ; and it was deposed that 
 the symptoms were similar to those of death by prussic 
 acid, but they might be the effect of any powerful 
 sedative poison, and that the means resorted to by 
 
 C.E. Z
 
 2^S PROOF OF THE CORPUS DELICTI 
 
 the prisoner were not likely to promote recovery, 
 but that artificial respiration and stimulants were 
 the appropriate remedies, and might probably have 
 been effectual. The prisoner had purchased prussic 
 acid and acetate of morphine on the previous day, 
 from a vendor of medicines with whom he was 
 intimate ; he had, however, been in the habit of using 
 these poisons, under advice, for a complaint in the 
 stomach. Two days after his wife's death he stated, 
 to the medical man who had been called in, that on 
 the morning in question he was about to take some 
 prussic acid ; that on endeavouring to remove the 
 stopper he had some difficulty, and used some force 
 with the handle of a tooth-brush ; that the neck of 
 the bottle was broken by the force, and some of the 
 acid spilt ; that he placed the remainder in the 
 tumbler, and went into the front room to fetch a 
 bottle in which to place the acid, but instead of 
 doing so, began to write to his friends in the 
 country, when in a few minutes he heard a scream 
 from his wife's bedroom ; that he immediately went 
 to her ; that she exclaimed that she had taken some 
 hot drink, and called for cold water, and that the 
 prussic acid was undoubtedly the cause of her 
 death. 
 
 Upon being asked what he had done with the 
 bottle, he said he had destroyed it, and assigned as 
 the reason why he had not mentioned the circum- 
 stances before, that he was distressed and ashamed 
 at the consequences of his negligence. According 
 to the opinions of the medical witnesses, after the 
 scream or shriek, volition and sensibility must have 
 ceased, and speech would have been impossible.
 
 IN CASES OF POISONING. 339 
 
 To various persons in the north of England the 
 prisoner wrote false accounts of his wife's state of 
 health. In one of them, dated from the Euston 
 Hotel, the 6th of June, he stated that she was un- 
 well, and had two medical grentlemen attendinof her, 
 and that he was apprehensive of a miscarriage In 
 another, dated the 8th, he stated that he had had 
 her removed to private lodgings, where she was 
 under the care of two medical men, dangerously 
 ill ; that symptoms of premature labour had come 
 on, and that one of the medical men had pronounced 
 her heart to be diseased. At the date of this letter 
 his wife was cheerful and well, and all these state- 
 ments respecting her health were false ; indeed they 
 had not been to any hotel, but had gone into lodgings 
 on their arrival in London. In a letter dated the 9th, 
 he stated the fact of her death, but without any allu- 
 sion to the cause of it ; which suppression, in a sub- 
 sequent letter, he stated to have been caused by the 
 desire of concealing the shame and reproach of his 
 negligence. His statement to his landlady that his 
 mother-in-law had died from disease of the heart 
 was a falsehood, he himself having certified to the 
 registrar of burials that bilious fever was the cause 
 of her death. The deceased was entitled to some 
 leasehold property, to which the prisoner would be- 
 come entitled absolutely if he survived her, and to a 
 copyhold estate which was limited to the joint use 
 of herself and her husband, so that the survivor 
 would take the absolute interest. The motive sug- 
 gested for the commission of the alleged murder 
 was, that the prisoner might become at once the 
 absolute owner of his wife's property. 
 
 z 2
 
 340 PROOF OF THE CORPUS DELICTI 
 
 Mr. Baron Gurney said that this case differed 
 from ahnost every other case he had ever known, in 
 this circumstance, that generally there was a difficulty 
 in ascertaining whether the death had been caused 
 by poison, and whether the poison came from the 
 hands of the person charged with the crime ; but that 
 in this case there could be no doubt that the deceased 
 had come to her death by a poison most certain, fatal, 
 and speedy in its effects, and that it was equally 
 certain that it came from the hands of the prisoner. 
 It had been proved beyond all doubt that the 
 prisoner had bought the poison, and had placed or 
 left it unprotected in the chamber of his wife, and 
 the question was, whether, she having died from 
 poison, it had been administered to her by his hand, 
 or whether he had purposely placed it in her way in 
 order that she might herself take it. The secrets of 
 all hearts were known to God alone, and human 
 tribunals could only judge of those secrets from the 
 conduct of the individual at the time. In this case 
 the jury had the conduct of the prisoner, his words, 
 his writing, his demeanour, proved before them, and 
 it would be for them to decide, upon the whole case, 
 whether they believed he had administered the 
 poison, or placed it within the reach of the deceased 
 in order that she might take it. If he had done 
 either of those things, he would be guilty of murder ; 
 if they thought he had merely acted incautiously and 
 negligently by leaving the poison in the way in which 
 he had left it, he had not been guilty of murder. He 
 dwelt upon the circumstances that the parties had 
 lived for a year and a half together upon terms of 
 mutual affection, that the marriage took place with
 
 IN CASES OF POISONING. 34 1 
 
 the consent of the lady's mother, with whom they 
 had Hved till her death, that the visit to London was 
 well known to their friends, and that the place 
 to which she was taken was where he had lodged 
 before, and near the residence of the only two 
 persons with whom he was acquainted in London. 
 
 When any person committed a heinous crime, 
 it was usual and natural, said the learned Judge, 
 to look whether there existed any adequate motive 
 to the commission of it. The prisoner being about 
 thirty, and his wife about twenty-two years of age, 
 it would be a good deal to say that the desire 
 to possess her property should be brought forward 
 as a oreat motive of interest to excite to the com- 
 mission of such a crime. Nevertheless, it was 
 sometimes found, as they could not dive into the 
 heart and ascertain motives, that a grave crime 
 might be committed, although no motive for it could 
 be found. Inasmuch as the great question the jury 
 had to decide was the intention of the prisoner, it 
 should be remembered that a man was entitled to a 
 candid construction of his words and actions, particu- 
 larly if placed in circumstances of great and 
 unexpected difficulty ; and they would take care to 
 give what fair allowance they could in putting a 
 construction upon the prisoner's words and actions. 
 He also laid stress upon the conduct of the prisoner 
 to his wife, and his general good character for 
 kindness. He could not conceive the motive which 
 should have induced the prisoner, in the letter posted 
 on the 6th, when his wife was well and cheerful, to 
 write so complete a fabrication from beginning to 
 end, of her being unwell and attended by two
 
 342 PROOF OF THE CORPUS DELICTI 
 
 medical mens and the jury would observe that it was 
 written on the very day on which the prisoner had 
 made arrangements for her residence with a friend 
 during his absence abroad. When the letter of the 
 Sth was written did not appear, but it was proved to 
 have been posted on the evening of that day. If it 
 was written before the death, it told against the 
 prisoner. It concurred with the letter written on 
 the 6th, and practised the same deception, as to the 
 two medical men, upon those to whom it was ad- 
 dressed. 
 
 The defence was, that the prisoner had been 
 guilty of a lamentable indiscretion ; that a sudden 
 event, fatal to his wife, had happened ; that he 
 was overpowered and overwhelmed by the result 
 of his own carelessness, and that he did not like to 
 divulge the truth. The awkward fact, however, was, 
 that in his last letter he had pursued exactly the 
 the same system as that adopted in the letter written 
 two days before. They would recollect, with refer- 
 ence to the letter of the Sth, that on that day he had 
 more than once exclaimed, " This is all my fault." 
 These outbreaks were of some importance for the 
 consideration of the jury in giving, as compared 
 with the letters, all indulgent consideration to any 
 language used by the prisoner, after an event 
 had occurred which placed him in a situation of 
 difficulty and embarrassment. In comparing the 
 statement set up for the defence with the evidence 
 of the medical witnesses, two things w^ere of a good 
 deal of importance. The prisoner's statement was, 
 that when he entered the bed-chamber, his wife told 
 him what had occurred, and that he took the
 
 IN CASES OF POISONING. 343 
 
 tumbler out of her hand. The medical men had told 
 the jury that with the scream that had been spoken 
 of, all volition and power of speech would cease ; but 
 here it must not be forgotten that the judgment of 
 these gentlemen must be received with this caution, 
 that none of them had ever witnessed the effect of 
 prussic acid on the human frame. It was for the jury 
 to decide whether they were convinced, beyond any 
 reasonable doubt, that the prisoner either adminis- 
 tered, or in effect caused to be administered, poison to 
 the deceased ; if, on the other hand, they should be of 
 opinion that he had been merely guilty of indiscretion, 
 and that, in consequence of the sudden and awful 
 event which had occurred, he had been driven to 
 conceal it by falsehood, they would acquit him. No 
 doubt falsehood often placed persons having recourse 
 to it under awkward and menacing circumstances. In 
 this case, falsehood had been much resorted to. It 
 was shown before the death, in the statement about 
 the two medical men ; that falsehood was followed 
 up and repeated in the second letter ; another false- 
 hood appeared in the representation that his mother- 
 in-law, who had died of bilious fever, as appeared by 
 an entry in the register under his own hand, had 
 died of disease of the heart. If they thought the 
 case conclusive, however painful it might be, it would 
 be their duty to pronounce the prisoner guilty ; but 
 if they thought it left in doubt and mystery, so that 
 they could not safely proceed, they would remember 
 that it was better that many guilty men should escape 
 than that one innocent man should perish. The 
 prisoner was acquitted (u). 
 
 («) J?e£: V. Belaney^ C. C. C, Sess, Pap., Aug. 1844.
 
 344 PROOF OF THE CORPUS DELICTI 
 
 Palmer's case is perhaps the most remarkable one 
 of this nature on record. The prisoner who lived 
 at Rufj^eley, had been a medical practitioner, but had 
 given up his profession for the pursuits of the turf, 
 in the course of which he became intimate with a 
 young man named Cook, who was addicted to the 
 same pursuits. By extensive gambling transactions 
 Palmer became involved in great pecuniary diffi- 
 culties, and was ultimately driven to the desperate 
 expedient of borrowing money at exorbitant rates of 
 interest, and to the commission of forgeries on a 
 large scale. In 1855 he was indebted in about 
 p^20,ooo, borrowed at sixty per cent, interest upon 
 bills (all of which bore the forged acceptances of 
 his mother), and secured in part by the assignment 
 of a policy of assurance for ;^ 13,000 on the life of 
 his brother, who died in August of that year. To 
 this source the prisoner had looked for relief from 
 his embarrassments, but the office, having become 
 acquainted with circumstances which mduced them 
 to dispute the validity of the policy on the ground 
 of fraud, declined to pay the sum assured ; and in 
 consequence the holder of some of these bills issued 
 writs against the prisoner and his mother, which 
 were sent into the country, to be served unless he 
 should effect some satisfactory arrangement. Ex- 
 posure, ruin, and punishment thus became imminent, 
 unless some means could be devised of averting the 
 impending disclosures. 
 
 On Tuesday the 13th of November, Cook and 
 Palmer were at Shrewsbury races, where Cook won 
 between ;^2,ooo and ^3,000, of which he received 
 ;^7oo or ^800 on the course ; the remainder was
 
 IN CASES OF POISONING. 345 
 
 payable in London on the following Monday 
 (the 19th). He was greatly excited by his success, 
 and the prisoner and several other persons spent 
 the following evening with him, after the conclusion 
 of the races, at his inn in Shrewsbury. In the 
 course of the evening the prisoner was seen in 
 the passage outside his own room, holding up a 
 tumbler to a gas-light ; after which he went, with 
 the tumbler in his hand, into the room where Cook 
 and his other friends were sitting. Soon afterwards, 
 on drinking some brandy and water. Cook became 
 suddenly ill, with violent vomiting, and it was 
 necessary to call in medical assistance. He said he 
 had been dosed by the prisoner, and handed the 
 money he had about him, between ^700 and ;^8oo, 
 to a friend to take care of, who returned it to him 
 the next morning, after his recovery. 
 
 Notwithstanding these suspicious circumstances, 
 such was the prisoner's influence over his infatuated 
 victim, that Cook returned from Shrewsbury to 
 Rugeley in company with him on the evening of 
 Thursday (the 15th), when, on their arrival, Cook 
 went to his lodgings at the Talbot Arms, and the 
 prisoner to his own house opposite. On the Saturday 
 and Sunday the prisoner called many times to see 
 Cook, who was repeatedly taken sick and ill after 
 taking coffee and broth from the hands of the prisoner 
 On Monday (the 19th) he got up much better , and 
 the prisoner called upon him early in the morning, 
 but did not see him again until eight or nine in 
 the evening, having in the interim, as it turned out, 
 been to London. In the course of that evening 
 Cook's medical attendant, who had previously seen
 
 346 PROOF OF THE CORPUS DELICTI 
 
 bim, left at the Talbot Arms a box of morphine pills, 
 which was taken into his bedroom by the prisoner, 
 who administered the pills. Shortly afterwards the 
 household was disturbed by screams proceeding 
 from the patient's room. He was found sitting up 
 in bed, in great agony, beating the bed-clothes, 
 gasping for breath, convulsed with a jerking and 
 twitching motion all over his body, and one hand 
 clenched and stiff, but conscious, and calling to those 
 about him to send for the prisoner. In about half 
 an hour the paroxysm subsided, and he became 
 composed. 
 
 On the next morning (Tuesday the 20th), 
 after taking coffee from the hand of the prisoner, 
 Cook was again affected with violent vomiting, 
 which continued throughout the day ; but in the 
 evening he was better, and in good spirits. About 
 seven o'clock he was visited by his medical at- 
 tendant, whom the prisoner urged to repeat the 
 morphine pills, as on the night before ; and they 
 went together to the surgery, where pills were pre- 
 pared and delivered to the prisoner, who took them 
 away, and went to Cook's room about eleven o'clock, 
 as was intended and supposed, for the purpose of 
 administering them to him ; so that he had the 
 opportunity in the interval of changing them, which 
 there can be no doubt he did. Cook strongly 
 objected to take them, because he had been made 
 so ill the night before ; but his objections were over- 
 come by the prisoner, and at length he swallowed 
 the pills presented to him. Soon after midnight he 
 became ill with the same agonising symptoms as 
 on the preceding night, and again desired that the
 
 IN CASES OF POISONING. 347 
 
 prisoner should be sent for. Such was the rigidity 
 of his Hmbs that it was found impossible to raise 
 him up, and he asked to be turned over on his side; 
 after which the action of the heart gradually ceased, 
 and in a quarter of an hour he was dead. After 
 death, the body was bent back like a bow, and if it 
 had been placed upon a level surface it would have 
 rested upon the head and heels. 
 
 Upon receiving information of the young man's 
 death, his step-father, who lived in London, went 
 to Rugeley, arriving on Friday (the 23rd), to 
 make arrangements for his funeral, and to inquire 
 into the state of his affairs, as well as into the 
 circumstances of his illness. On stating to the 
 prisoner that he understood he knew something 
 of his affairs, he was told by the prisoner that 
 there were /4,ooo worth of bills of the deceased's 
 out, to which his (the prisoner's) name was attached, 
 and that he had got a paper drawn up by a 
 lawyer, signed by the deceased, to show that 
 he had never received any benefit from them. 
 The step-father then inquired if there were no 
 sporting debts owing to him, to which the prisoner 
 said there was nothing of the sort ; and on ask- 
 ing about the betting-book, which could not be 
 found, the prisoner said it would be of no use if 
 found, as when a man dies his bets are done with. 
 
 Other facts now began to turn up throwing a 
 sinister light upon the mysterious events of the last 
 few days. It was discovered that the prisoner had 
 procured three grains of strychnia on the Monday 
 evening, and a second quantity of six grains on the 
 following day ; that he had been seen to search the
 
 348 PROOF OF THE CORPUS DELICTI 
 
 pockets, and to grope under the pillow and bolster 
 of the unfortunate man before his body was cold ; 
 that although Cook's betting-book was kept on the 
 dressino-table of his bedroom, and was seen there 
 on the previous night, it was never seen after his 
 death ; that the prisoner handed to a friend of the 
 deceased five guineas as the whole of the money 
 that was found belonging to him ; that he had been 
 to London on the Monday, and procured payment 
 of upwards of ^1,000 on account of the wagers 
 won by the deceased at Shrewsbury, and ap- 
 propriated the amount in payment of his own 
 losses, and in part payment of the forged ac- 
 ceptances on which writs had been issued ; that 
 before the races he w^as short of money, and had 
 borrowed ,^'25 ; that he had lost largely at the 
 races, but had subsequently paid considerable sums 
 to various creditors ; that two or three days after 
 Cook's death he had endeavoured to obtain the 
 attestation by an attorney to a forged acknowledg- 
 ment in the name of the deceased that ^4,000 
 of bills had been negotiated by the prisoner for 
 his benefit ; and, finally, had prevailed upon the 
 medical man who had attended the deceased, who 
 was of a very advanced age, to certify that he had 
 died of apoplexy. 
 
 A post-mortem examination was made, at which 
 the prisoner was present, and the stomach and 
 intestines were placed m a jar to be taken to 
 London for examination. While the operation 
 was going on, the prisoner pushed against the 
 medical men engaged in it, so as to shake a 
 portion of the contents of the stomach into the
 
 IN CASES OF rOISONING. 349 
 
 body. The jar was then covered with parchment, 
 tied down, and sealed and placed aside ; and while 
 the attention of the medical men was still engaged 
 in examining the body, the prisoner removed the 
 jar to a distance, near a door not the usual way out 
 of the room, and it was found that two slits had 
 been cut with a knife through the double skin 
 which formed the covering. The prisoner having 
 learned that the jar was to be sent to London the 
 same evening, offered the driver who was to carry 
 the persons in charge of it to the railway station, 
 /^lo to upset the carriage and break the jar. The 
 analytical chemists, to whom the stomach and 
 intestines, and, subsequently, other parts of the body, 
 were sent, found traces of antimony, but none of 
 strychnia, or any other poison ; and sent their 
 report by post, directed to the attorney at Rugeley 
 employed in the investigation. The prisoner incited 
 the post-master to betray to him the contents of this 
 report ; and wrote a confidential letter to the 
 coroner, to whom during the course of the inquiry 
 he sent presents of fish and game, stating that he 
 had seen it in black and white that no strychnia, 
 prussic acid, or opium had been found, and express- 
 ing his hope that on the next day to which the 
 inquest stood adjourned, the verdict would be that 
 of death from natural causes. The coroner's jury 
 found a verdict of wilful murder against the prisoner. 
 Upon tJie trial the chemical witnesses examined on 
 the part of the prosecution stated that the stomach 
 and intestines were received in an unfavourable 
 state for finding strychnia had it been there, inasmuch 
 as the stomach had been cut from end to end, and the
 
 350 PROOF OF THE CORPUS DELICTI 
 
 contents were gone, and the mucous surface, in 
 which any poison, if present, would naturally be 
 found, had been lyino- in contact with the intes- 
 tines and their succulent contents, and shaken 
 up with them ; that the non-discovery of strychnia 
 did not conclusively prove that death had not 
 been caused by that poison, inasmuch as they had 
 failed to discover it in animals killed for the purpose 
 of experiment ; that if a minimum dose is adminis- 
 tered, it disappears by absorption into the blood ; 
 that it is discoverable, and had been discovered 
 when administered to animals in excess of the 
 quantity required to destroy life, but that there was 
 no known process by which it could be discovered in 
 the tissues, if present there only in a small quantity. 
 On the other hand, witnesses were called on behalf 
 of the prisoner, who disputed the theory of absorp- 
 tion, and stated that strychnia, if present, is always 
 discoverable, not only in the blood and in the 
 stomach and intestines, and their contents, but also 
 in the tissues ; that there was nothing in the con- 
 dition of the parts of the body submitted to examina- 
 tion to preclude the detection of strychnia ; and that, 
 if present, it might have been found, even if it had 
 been administered in a minimum dose, though, on 
 this latter point, there Vv'as some difference of opinion 
 among them. 
 
 Numerous medical witnesses of the highest pro- 
 fessional experience and character, called on the 
 part of the Crown, deposed that many of the symp- 
 toms, especially in the progress and termination of 
 the attack, were not those of any of the ordinary 
 forms of tetanus, idiopathic or traumatic, or of any
 
 IN CASES OF POISONING. 35 1 
 
 known disease of the human frame, but were the 
 peculiar characteristics of poisoning by strychnia. 
 Nor were there in these respects any such differences 
 between their opinions and those of many respect- 
 able professional witnesses called on the part of the 
 prisoner, as might not be accounted for by the im- 
 perfect state of knowledge of all the forms of tetanic 
 affection, or by the defects of the physiological and 
 pathological science of the day. Of the numerous 
 professional witnesses examined on behalf of the 
 prisoner, some ascribed the symptoms to tetanic 
 affection ; others to various forms of disease from 
 which they were shown to be clearly distinguish- 
 able ; while others, again, ascribed them to physical 
 causes absolutely absurd and incredible. The con- 
 tradictions and inconsistencies in the testimony of 
 some of the prisoner's scientific witnesses, and their 
 obtrusive zeal and manifest purpose of obtaining an 
 acquittal, deprived it of all moral effect, and drew 
 down upon several of them the severe reprehension 
 of the Court. 
 
 After a protracted trial of twelve days, the 
 prisoner was found guilty, and was executed pursu- 
 ant to his sentence (x) ; and there is no doubt that 
 this was only one of several murders perpetrated by 
 this great criminal, by the same nefarious means, 
 for the purpose of obtaining money secured by frau- 
 dulent life assurances (y). 
 
 (.r) C. C. C. 1856, coram Lord Campbell, L.C.J. See Sessions Papers 
 for official shorthand minutes of evidence, also Shorthand Report. 
 
 iy) See Ann. Reg. 1855 (Chr.), p. 190. The technical nature of the 
 evidence in Smethurst's case (p. 138, supra) would render it inappli- 
 cable in illustration of legal principles, even if doubt had not been 
 thrown upon the verdict by the grant of a pardon.
 
 352 PROOF OF THE CORPUS DELICTI 
 
 Section 5. 
 
 APPLICATION of THE GENERAL PRINCIPLE TO PROOF 
 OF THE CORPUS DELICTI IN CASES OF INFANTICIDE. 
 
 Of the various forms of criminal homicide, that 
 of Infanticide, by which is popularly understood the 
 murder of a recently born infant — committed as it 
 most frequently is for the purpose of concealing its 
 birth — perhaps presents the greatest difficulties in 
 the establishment of the corpus delicti. 
 
 (i.) In addition to the sources of difficulty and 
 fallacy which are incidental to charges of homicide in 
 general, there are many circumstances of embarrass- 
 ment peculiar to cases of this nature, amongst which 
 must be mentioned the occasional uncertainty and in- 
 conclusiveness of the symptoms of pregnancy (the 
 fundamental fact to be proved), which may resemble 
 and be mistaken for appearances caused by obstruc- 
 tions or spurious gravidity {2). In a remarkable case 
 of imputed murder of an adult female, the suspicion 
 of pregnancy arose principally from the bulk of the 
 deceased while living, coupled with circumstances of 
 conduct which denoted the existence of an improper 
 familiarity between her and the prisoner, and from the 
 discovery, upon post-Diorteni examination, of what 
 was believed by the witnesses for the prosecution to 
 be the placental mark. Four medical witnesses ex- 
 pressed the strongest belief that the deceased had been 
 recently delivered of a child nearly come to maturity ; 
 
 iz) Rex V. J5<3:/^, Warwick Summer Assizes, 1809, Rex\. Ferguson^ 
 Burnett's Criminal Law of Scotland, p. 574.
 
 IN CASES OF INFANTICIDE. 353 
 
 while, on the other hand, it was proved that she had 
 been subject to obstructions ; and it was deposed 
 that the appearances of the uterus might be ac- 
 counted for by hydatids, and tliat what was thought 
 to be the phicental mark might be ihe. pediczi/i by 
 which they were attached to the internal surface of 
 the womb {a). The learned Judge said to the jury, 
 that it was a very unfortunate thing that upon every 
 particular point they had to rest upon conjecture ; 
 that it was a conjecture to a certain extent that the 
 deceased was with child, that it was conjecture to a 
 certain degree that any means were used to procure 
 abortion ; and, if they were used, that it was con- 
 jecture that the prisoner was privy to the administra- 
 tion of them. 
 
 (2.) It must be shown that a child has been 
 born alive, and acquired an independent circula- 
 tion and existence ; it is not enough that it has 
 breathed in the course of its birth {b) ; but if a child 
 has been wholly born, and is alive, and has acquired 
 an independent circulation, it is not material that it 
 is still connected with its mother by the umbilical 
 cord (<:), nor is it essential that it should have breathed 
 at the time it was killed, as many children are born 
 alive and yqt do not breathe for some time after 
 birth {d). 
 
 (a) Rex V. Angus, Lancaster Autumn Assizes, 1808, coram 
 Chambre, J., Shorthand Report ; and see Burnett's Criminal Law of 
 Scotland, p. 575. 
 
 {b) Rex V. Poiilton, 5 C. & P. 329 ; Rex v. Etioch, ib. 539 ; Rex v. 
 Crutchley, 7 ib. 814 ; Rex v. Sellis, ib. 856 ; Reg. v. Handle^, 13 Cox, 
 C. C. 79- 
 
 {c) Reg. V. Reeves, 9 ib. 25 ; Reg. v. Wright, ib. 754 ; Reg. v. Trill oe^ 
 1 C. & M. 650, {d) Rex V, Braiji, 6 C. & V. 349. 
 
 C.E. A A
 
 354 TROOF OF THE CORPUS DELICTI 
 
 Whether a child has been born alive or not is 
 frequently a question of considerable difficulty ; and it 
 is an admonitory consideration, that scientific tests 
 which have been considered as infallible, with the 
 advance of knowledge have been found to be 
 fallacious. Such is the case with respect to the 
 hydrostatic test, from the indications of which in 
 former times many women have suffered the last 
 penalty of the law. On the trial of a woman at 
 Winchester spring assizes, 1835, it was proved that 
 the lungs were inflated, which the medical "witness 
 said would not have been the case if the child had 
 been still-born ; but, in answer to a question from Mr. 
 Baron Gurney, he also said that if the child had 
 died in the birth, thelunors mi^ht have been inflated, 
 upon which the learned Judge stopped the case (e). A 
 single sob, it appears, is sufficient to inflate the lungs, 
 though the child died in the act of birth (/). A young 
 woman was tried before Mr. Baron Parke for the 
 murder of her female child ; the throat was cut, and 
 the wound had divided the right jugular vein ; the 
 lunofs floated in water, and were found on cuttinof 
 them to be inflated ; but it was deposed that this 
 test only showed that the child must have breathed, 
 and not that it had been born alive, and that there 
 are instances of children being lacerated in the throat 
 in the act of delivery. On the close of the case for 
 the prosecution, the learned Judge asked the jury 
 whether they were satisfied that the child was born 
 alive, and that the wound was inflicted by the prisoner 
 
 (e) Rex V. Simpson, Cummin on the Proof of Infanticide, 40. 
 (/) Rexv. Davidson, Hume's Commentaries on the Criminal Law of 
 Scotland, vol. i., p. 292 (note 3).
 
 IN CASES OF INFANTICIDE. 355 
 
 with the Intention of destroying life ; as, if they 
 entertained any doubt on these points, it would be 
 unnecessary to go into the evidence on behalf of the 
 prisoner. The jury returned a verdict of acquittal {g). 
 
 (3.) It Is a further source of uncertainty in cases 
 of this nature that circumstances of presumption 
 frequently adduced as indicative of the crime of 
 murder, may commonly be accounted for by the 
 agency of less malignant motives. Concealment of 
 pregnancy and delivery may proceed even from 
 meritorious motives , as where a married woman 
 resorted to such concealment in order to screen her 
 husband, who was a deserter, from discovery (//). 
 The struggle between the opposing motives of 
 shame and affection must be severe before a mother 
 can contemplate, and still more so, before she can 
 form and execute, the unnatural resolution of taking 
 aw^ay the life of her own offspring. The unfortunate 
 subject of these conflicting motives Is frequently the 
 victim of deceit and treachery, and is almost always 
 deserted by one who was, if not her seduc ^r, at least the 
 partner of her frailty. The world is not lenient In such 
 cases, though scarcely any condition of human weak- 
 ness can be imagflned more calculated to excite the 
 compassion of the considerate and humane (/'). The 
 wisdom and humanity of the legislature, in accordance 
 with the spirit of the times, led, though tardily, to the 
 repeal {k) of the cruel rule of presumption created by 
 
 (g) Rexw. Groitnnll, Worcester Spring Assizes, 1837. 
 
 {h) Rex V. Stciuart^ Burnett's Criininal Law of Scotland, p. 572. 
 
 (/) Hume, see note (_/) supra, vol. i., p. 291. 
 
 {k) St. 43 Geo. III. c. 58, s. 3. 
 
 A A 2
 
 356 PROOF OF THE CORPUS DELICTI 
 
 Statute 21 Jac. I. c. 27, and suggested by a corre- 
 sponding edict of Henry II. of F" ranee, which made 
 the concealment of the birth of an illegitimate child 
 by its mother conclusive evidence of murder, unless 
 she made proof by one witness at least that the 
 child was born dead. The rule too long survived 
 the age in which it originated, and under it many 
 women must have unjustly suffered [I). By the 
 repealing statute the endeavour to conceal the birth 
 of a child by burying, or otherwise secretly disposing 
 of the body, instead of being treated as a conclusive 
 presumption of murder, was made a substantive 
 misdemeanour [m). 
 
 (4.) The casualties which, even In favourable cir- 
 cumstances, are inseparable from parturition, must 
 be greatly aggravated by the perplexities in- 
 cidental to illegitimate, clandestine, and unassisted 
 birth, from the impulses of shame and alarm, the 
 desire of concealment, the want of assistance and 
 sympathy, and occasionally from the mother's in- 
 ability to render the attentions requisite to preserve 
 infant life ; and there have been cases in which 
 even the very means resorted to, under the terror of 
 the moment, to facilitate birth, have been the unin- 
 tentional cause of death. For these reasons, wounds 
 and other marks of violence are not necessarily 
 considered as indicative of wilful injury, and are not 
 therefore sufficient to warrant a conviction of murder, 
 
 (/) Hume, see note (/) supra, vol. i., p. 292. 
 
 {m) See now St. 24 & 25 Vict. c. 100, s. 60. See Russell on Crimes 
 (6th ed.), vol. iii., p. 162, for the history of the legislation upon this 
 subject.
 
 IN CASES OF INFANTICIDE 357 
 
 unless the concomitant circumstances clearly mani- 
 fest that they were knowingly inflicted upon a 
 body born alive. Nor are these principles of con- 
 struction peculiar to our own law ; it is believed 
 that they prevail generally, if not universally, in the 
 application of the criminal law to cases of this 
 nature (//). 
 
 It follows from these considerations, that though 
 the facts may justify extreme suspicion that death 
 has been the result of intentional violence, yet if 
 they do not entirely exclude every other hypo- 
 thesis by which it may be reasonably accounted 
 for, sound principles of justice, and a proper regard 
 to the fallibility of human judgment in cases so 
 difficult as these often are, combine to render a 
 conviction for concealment of birth a safer result 
 than a conviction for murder. No one, however, 
 who has seen much of cases of this kind, can have 
 any serious doubt that in many of them there is the 
 strongest suspicion of murder, and one very good 
 reason why concealment of birth should be punish- 
 able is that very often the acts of the mother have 
 rendered it impossible to ascertain whether there 
 has or has not been foul play. 
 
 It has been thoucjht that in these cases feelincrs 
 of humanity have been permitted to bias the strict 
 course of judicial truth, and that subtle and strained 
 hypotheses have been used to explain circumstances 
 of conclusive presumption. That this does some- 
 
 («) Alison's Principles of the Criminal Law of Scotland, vol. L, 
 p. 159.
 
 358 PROOF OF THE CORPUS DELICTI 
 
 times happen cannot be denied, and if so, it is 
 a proof that the law is not in harmony with 
 pubHc feeHng ; but it may be doubted whether in 
 this reproach sufficient weight has always been 
 given to the difficulties inseparably incidental to 
 the proof of this crime. It is, however, well 
 deserving of consideration, whether the ends of 
 public justice and social protection might not be 
 better promoted by the abolition of capital punish- 
 ment in a class of cases in which society will not 
 concur in its infliction, and by the substitution of a 
 minor punishment, not only in the case of conceal- 
 ment of birth, but generally in all cases where death 
 has been caused by the wilful omission of the mo;;her 
 to take the necessary means for the preservation of 
 infant life (o), so as to avoid on the one hand the 
 scandal and ill example of acquittals in the face of 
 convincing evidence of guilt, and on the other, of 
 doing violence to public feeling by capital convictions 
 in the case of a crime which, bad as it is, is 
 nevertheless wanting, as an eminent prelate has 
 remarked, " in all the attributes which distinguish 
 the murder of adults, viz. the wickedness of the 
 motive, the danger to the community, and the feel- 
 ing of alarm and insecurity which it occasions " (/>). 
 
 (0) See Code Penal d'Autriche, prem. partie, ch. xvi., art. 122, 
 {/>) Whately on Secondary Punishments, p. 108, App. No. 2 ; and 
 see Selections from the Charges, etc., of Mr. Baron Alderson, 78. 
 
 It might have been supposed that the neglect to take any precaution 
 to preserve the life of the infant would be evidence of manslaughter ; 
 but the practical difficulties in the way of obtaining a conviction for 
 manslaughter, under the circumstances in question, may be said to be 
 insuperable. The neglect must be one occurring after the child has 
 acquired its separate existence, that is, at a time when all the con- 
 siderations in favour of the accused, which are pointed out in the text.
 
 IN CASES OF INFANTICIDE. 359 
 
 The discussion and illustration of the rules and 
 principles of evidence, in reference to the proof of 
 the corpus delicti, might be extended to an examina- 
 tion of their application to other offences ; but the 
 subject has been sufficiently exemplified for the 
 purposes of this Essay, and such an extended 
 examination would therefore be superfluous. The 
 cases which have been cited strikingly exhibit the 
 strict accordance between judicial practice and the 
 dictates of enlightened reason. 
 
 operate with their utmost strength. It would not seem unreasonable 
 if the omission to make any preparation for the birth of a child, where 
 that event is foreseen, leading as it constantly does to the death of the 
 child, were to be visited with some minor punishment
 
 AMERICAN NOTES. 
 
 [Note to Chapter VII. ] 
 
 Corpus Delicti — Meanifig of the Term. 
 
 Proof of the corpus delicti means proof that the crime charged 
 has actually been committed by some one. The two principal 
 elements are the facts which are the basis of the charge and the 
 criminal agency in bringing those facts into existence. Best on 
 Evidence, § 442 ; Pitts v. State, 43 Miss. 472 ; People v. Palmer, 
 109 N. Y. 1 13, 4 Am. St. Rep. 477. In People v. Simonsen, 107 
 Cal. 345, it is said : "The term corpus delicti means exactly what 
 it says. It involves the element of crime. Upon a charge of 
 homicide, producing the dead body does not establish the corpus 
 delicti. It would simply establish the corpus.'' 
 
 Arson — What is the Corpus Delicti f 
 
 Carlton v. People, 150 111. 1S6, 41 Am. St. Rep. 346; State v. 
 Jones, 106 Mo. 302. 
 
 Proof of the Corpus Delicti. 
 
 Proof of the corpus delicti consists of proof of the fact of death 
 and of the means by which death was produced. One of these 
 being proved, the other may be inferred from circumstantial evi- 
 dence. These circumstances must be wholly inconsistent with 
 the defendant's innocence. People v. Bennett, 49 N. Y. 137. But 
 compare Campbell v. People, 159 111. 9. 
 
 To establish the corpus delicti in robbery, it is sufficient to 
 show that a person had a sum of money before the event, that he 
 became intoxicated, and was beaten into insensibility, after which 
 his money was gone. Bloomer v. People, i Abb. Dec. 146. 
 
 Corpus delicti must be proved beyond a reasonable doubt. 
 Norwood V. State, 45 Md. 68. 
 
 The corpus delicti need not be proved by " overwhelming proof," 
 merely beyond a reasonable doubt. Zell v. Com., 94 Pa. 258.
 
 359 '^ AMERICAN NOTES. 
 
 In criminal cases the prosecution must prove, first, that an 
 offence has been committed; and, secondly, that it was committed 
 by the accused. U. S. v. Woods, 4 Cranch C. C. 484, Fed. Cas. 
 No. 16760. 
 
 But although a jury ought to be very sure that a crime has been 
 committed before convicting the accused, the evidence as a whole 
 may leave no reasonable doubt as to the crime or its perpetrator, 
 even though the evidence of the death or of any other material 
 fact may be insufficient when taken alone. Campbell v. People, 
 159 111. 9; State V. Williams, 52 N. C. 446; Com. v. Johnson, 
 162 Pa. 63. 
 
 This is well illustrated in the case of Com. v. Williams, 171 
 Mass. 461. 
 
 The defendant was charged with the murder of one Gallo. 
 Gallo's house was burned one night, and Gallo was never again 
 seen, although he had been in the house in the evening before 
 the fire. A body of uncertain sex was found in the remains 
 of the house, and the clasp of a pocket-book like Gallo's near by. 
 The fire effectually concealed all indications of violence, if there 
 had been any. 
 
 But very early the next morning after the fire, the defendant ar- 
 rived at a town three miles away in a disordered state and stained 
 with blood. He told a story of having been robbed near a pond 
 which he had passed. The vicinity of the pond showed no signs 
 of a struggle, but there were tracks of a running man from Gallo's 
 house to the pond. 
 
 On the day before the fire, the defendant was penniless and 
 wanting money to go to Klondike. In telling of the robbery he 
 said that he had sent for seventy-five dollars and was glad he had 
 not received it. At nine o'clock on the same morning he said 
 that he had sent for two hundred dollars and expected to hear be- 
 fore Saturday. At ten o'clock he produced a roll of bills, from 
 which he took one of five dollars and spent the greater part of it. 
 On the evening of the same day, after telling different stories to 
 the police, when about to be searched, he produced a roll of fivQ 
 ten dollar and four five doUar bills, which at first he said his brother 
 had sent to him by mail, and then declared that he found by the 
 pond where he was assaulted as he was coming down. Upon an 
 officer pressing him further, he turned very white, perspired, and
 
 AMERICAN NOTES. 359"" 
 
 hardly could speak for a time, but persisted that he found the 
 money as he said. Then the officers searched his room and found 
 very bloody clothing and two secreted twenty-dollar goldpieces, of 
 which at first the defendant denied knowledge, but which after- 
 wards he said he found with the rest. It appeared that Gallo 
 had had three twenty-dollar goldpieces, and some time before 
 had been paid one hundred and nine dollars mostly in ten and 
 five dollar bills. Gallo seemingly had no bank account, and 
 seems to have kept his money as he earned it, except the very 
 small sums which he had to spend for his living. 
 
 With reference to the question whether a crime had been com- 
 mitted, it should be added that the kerosene can usually kept 
 by Gallo in another place was found in the bedroom, between the 
 body and the place of the bed ; and although we are not attempt- 
 ing to state details, it should be noticed as possibly significant that 
 the defendant, when told that the Italian's shanty was burned and 
 that he was burned in it, answered, " Was he all burned up ? " 
 
 This evidence was held to be sufficient to warrant the jury in 
 finding that beyond a reasonable doubt Gallo had been murdered 
 and the defendant was guilty of the crime. 
 
 Proof of Corpus Delicti by Circmjtstantial Ei'ideuce. 
 
 Circumstantial evidence may be used in establishing the corpus 
 delicti, but in such case the certainty attained must be equal to 
 that attained from direct evidence. State v. Davidson, 30 Vt. 377, 
 73 Am. Dec. 312 ; State v. Flanagen, 26 W. Va. 116. 
 
 All that is required is that the corpus delicti be proved beyond a 
 reasonable doubt; the kind of evidence is immaterial. Anderson 
 V. State, 24 Fla. 139; State v. Keeler, 28 Iowa, 551; Brown z/. 
 State, I Tex. App. 154 ; Buel v. State, 104 Wis. 132 ; Campbell 
 V. People, 159 111. 9 ; Com r'. Johnson, 162 Pa. 63. 
 
 In Reg. 7'. Mockford, 11 Cox C. C. 16, the corpus delicti was 
 established wholly by circumstantial evidence. 
 
 The defendant was charged with stealing certain chickens, and 
 was convicted, although the owner of the chickens was unable to 
 identify the ones taken or even to say whether any of his chickens 
 were missing. 
 
 The same was true in State v. Loveless, 17 Nev. 424. where the 
 defendant was convicted of stealing a calf.
 
 359 ^ AMERICAN NOTES. 
 
 Where the deceased was found lying dead at the foot of a rail- 
 road embankment, it was satisfactorily shown that he was mur- 
 dered, by the facts that his wounds could not have been made by 
 an engine, there was a pool of blood on the track and traces of 
 dragging the body down the embankment, there was a club near 
 bv with which the blows might have been given, and the money 
 the deceased had had was gone. Williams v. State, 6i Wis. 281. 
 
 To show that arsenic which had caused death was not admin- 
 istered to the deceased by a physician, he may show that he 
 administered the same medicine to others with no ill eftect. Epps 
 V. State, 102 Ind. 539. 
 
 Blood stains near the place where a murder is alleged to have 
 been committed and stains on articles belonging to deceased and 
 found in possession of the accused are evidence of the corpus 
 delicti. Wilson v, U. S., 162 U. S. 613. 
 
 The Fact of Death. 
 
 The fact of the death of one alleged to have been murdered by 
 the accused may be established by circumstantial evidence alone. 
 Johnson v. Com., 81 Ky. 325 ; State v. Winner, 17 Kan. 298. 
 
 The fact of the killing and death may be proved wholly by cir- 
 cumstantial evidence, but the jury should be warned to weigh 
 it with unusual ■ care. The finding of the corpse may not be 
 necessary. U. S. v. Brown, Fed. Cas. 14, 656 a; U. S. v. Gilbert, 
 2 Summ. 19, Fed. Cas. 15204; U. S. v. Matthews, Fed. Cas. 
 15 741 a ; Stocking v. State, 7 Ind. 326. 
 
 " There is no one dominant part of the case which must be 
 proved as directly as possible in the nature of things before evi- 
 dence of a remoter kind is admissible to connect the defendant 
 with the supposed crime. No doubt the jury ought to be very 
 sure that a crime has been committed before they convict a 
 person of having committed it. But even upon an indictment 
 for murder, the evidence of the death as well as of every other 
 material fact may be insufficient singly, and yet the evidence taken 
 as a whole may leave no reasonable doubt of the crime or of the 
 defendant's guilt. The facts in a circle support one another, when 
 if any one were withdrawn, they would all fall to the ground." 
 Com. V. Williams, 171 Mass. 461. 
 
 The corpus delicti is not sufficiently proved by the testimony of
 
 AMERICAN NOTES. 359 ^ 
 
 a witness that the defendants tied himself and another, that they 
 struck tiiat other with a sword on the head and stabbed him in the 
 back upon which he fell and had never been seen since. People 
 V. Ah Fung, 1 6 Cal. 137. 
 
 Where the defendant was charged with the murder of his illegiti- 
 mate child, newly born, the evidence showed that he hung it in a 
 grain sack in a tree where its cries were heard, that afterwards he 
 took it away and it was not again seen. Hdd^ not sufficient proof 
 that the child was dead. People '-. Callego, 133 Cal. 295. 
 
 After the State has ^\\o\w\ p?-i}iia facie the death of the deceased, 
 it requires the same weight of evidence on the part of the defence 
 to show that the person claimed to be deceased is still alive as to 
 establish an alibi. State v. Vincent, 24 Iowa, 570, 95 Am. Dec. 753. 
 
 See remarks of Chief Justice Shaw in Cora. v. Webster, 5 Cush. 
 295, 2)-2>'- "We now come to consider that ground of defence 
 on the part of the defendant which has been denominated, not 
 perhaps witli precise legal accuracy, an alibi ; that is. that the de- 
 ceased was seen elsewhere out of the Medical College after the 
 time when, by the theory of the proof on the part of the prosecu- 
 tion, he is supposed to have lost his life at the Medical College. 
 It is like the case of an alibi in this respect, that it proposes to 
 prove a fact which is repugnant to and inconsistent with the facts 
 constituting the evidence on the other side, so as to control the 
 conclusion, or at least render it doubtful, and thus lay the ground 
 of an acquittal. And the Court are of opinion that this proof is 
 material ; for, although the time alleged in tlie indictment is not 
 material, and an act done at another time would sustain it, yet in 
 point of evidence it may become material ; and in the present 
 case, as all the circumstances shown on the other side, and relied 
 upon as proof, tend to the conclusion that Dr. Parkman was last 
 seen entering the Medical College, and that he lost his life therein, 
 if at all, the fact of his being seen elsewhere afterwards would be 
 so inconsistent with that allegation that, if made out by satisfactory 
 proof, we think it would be conclusive in favor of the defendant." 
 
 Body of Deceased Need not be Found. 
 Where the body of deceased cannot be found, because lost at 
 sea, other evidence may prove the corpus delicti. U. S. v. 
 Williams, i Cliff. 5, Fed. Cas. 16707.
 
 359/ AMERICAN NOTES. 
 
 Where it was claimed that the body had been burned, it was 
 shown that certain metallic articles of dress such as deceased had 
 sometimes worn were found in the ashes of a fire. State v. 
 Williams, 52 N. C 446, 78 Am. Dec. 248, 
 
 Either the body must be found and identified, or criminal acts 
 must be proved sufficient to account for death and the absence 
 of the corpse. Ruloff z'. People, 18 N. Y. 179. 
 
 To show that the deceased came to his death by drowning at 
 sea, the master of the vessel from which he was missed may testify 
 that he saw no vessels for several days before and after the 
 deceased was missed. St. Clair v. U. S., 154 U. S. 134. 
 
 Identity of the Body in Homicide. 
 
 Where the body of the deceased or its identity has been totally 
 destroyed by fire or otherwise, the corpus delicti may be proved 
 by circumstantial evidence. State v. Williams, 52 N. C. 446, 78 
 Am. Dec. 248. 
 
 It may be shown by any sort of evidence, if that evidence 
 establishes it beyond a reasonable doubt. Timmerman v. Terr., 
 3 Wash. T. 445, 17 Pac. 624. 
 
 The evidence to identify a decomposed body with that of the 
 murdered man was held sufficient where the body corresponded in 
 size, height, and color of the hair, and that the clothing was the 
 same as that worn by deceased. State v. Downing, 24 Wash. 
 
 340- 
 
 In McCulloch v. State, 48 Ind. 109, all that was found of the 
 body of the person alleged to have been murdered was a human 
 skeleton of the size and sex of that individual. 
 
 This proof with circumstantial evidence of the cause of death 
 and of the identity of the skeleton proved the corpus delicti. 
 
 The father of the deceased was allowed to testify that he recog- 
 nized the body from the description given by others. Taylor v. 
 State, 35 Tex. 97. 
 
 Personal Peculiarities. 
 
 A skull identified by the formation of the teeth and jaws. Gray 
 V. Com., loi Pa. 380. 
 
 The following circumstances were held sufficient to prove the 
 corpus delicti. A negro boy disappeared when there was no
 
 AMERICAN NOTES. 339 <f 
 
 known motive or intention to leave. Later a headless trunk was 
 found in a sack, and the severed legs were found in anotlier. 
 These were identified as parts of the body of the boy, by scars on 
 the leg, by the color of the skin, and the size. The shirt was also 
 identified. Tiie boy's head was never found. Lancaster v. State, 
 91 Tenn. 267. 
 
 In Lindsay v. People, 63 N. Y. 143, to identify a decomposed 
 body, evidence was given as to similarity of color of hair and 
 beard, of size and stature, and a dentist testified as to missing and 
 mended teeth. 
 
 Identification of Body by Articles of Property. 
 
 Articles found on a dead body may be used to identify it. State 
 V. Dickson, 78 Mo. 438. 
 
 A burned and mutilated body identified by the charred cloth 
 and a slate-pencil once carried by the deceased. State v. Martin, 
 47 S. C. 67. 
 
 Photographs to Identify Body. 
 
 A photograph of the deceased may be used to identify the 
 body. Beavers v. State, 58 Ind. 530. 
 
 Witness allowed to testify that a mutilated, discolored face 
 resembled a photograph. Udderzook v. Com., 76 Pa. 340. 
 
 Proof of Identity of the Body May Be Necessary. 
 
 Where a body is found, and there is great reason to suppose 
 that the body would be found if a homicide had been done, there 
 can be no conviction unless the body be sufficiently identified. 
 People V. Wilson, 3 Parker Cr. Rep. 199. 
 
 Where defendant was charged with murdering A, it was proved 
 that A had disappeared and that a body was found in the river 
 six hundred miles down stream. The body was not identified as 
 that of A, and although there was circumstantial evidence that de- 
 fendant was guilty, there could be no conviction. Walker v. State, 
 14 Tex. App. 6og. 
 
 " The fact of the identity of the body of the deceased with that 
 of the dead body, parts of which were found at the Medical Col- 
 lege, is a material fact, necessary to be established by the proof. 
 Some evidence has been offered, tending to show that the shape,
 
 359^' AMERICAN NOTES. 
 
 size, height, and other particulars respecting the body, parts of 
 which were found and put together, would correspond with those 
 of the deceased. But, inasmuch as these particulars would also 
 correspond with those of many other ])crsons in the community, 
 the proof would be equivocal and fail in the character of conclu- 
 siveness upon the point of identity. But other evidence was then 
 offered, respecting certain teeth found in the furnace, designed to 
 show that they were the identical teeth prepared and fitted for Dr. 
 Parkman. Now, if this latter fact is satisfactorily proved, and if 
 it is further proved to a reasonable certainty that the limbs found 
 in the vault and the burnt remains found in the furnace were parts 
 of one and the same dead body, this would be a coincidence of a 
 conclusive nature to prove the point sought to be established ; 
 namely, the fact of identity. Why, then, it may be asked, is the 
 evidence of height, shape, and figure of the remains found given at 
 all? The answer is, because it is proof of a fact not repugnant to 
 that of identity, but consistent with it, and may tend to rebut any 
 presumption that the remains were those of any other ])erson, 
 and therefore, to some extent, aid the proof of identification. 
 The conclusion must rest upon a basis of facts proved, and must 
 be the fair and reasonable conclusion from all such facts taken 
 together." Com. v. Webster, 5 Cush. 295, 313. 
 
 Opinion as to Identity. 
 
 A witness cannot give his opinion tliat a decomposed body is the 
 body of the deceased in question, but must give facts upon which 
 such an opinion is to be based. People v. Wilson, 3 Parker Cr. 
 Rep. (N. Y.) 199. 
 
 Cause of Death. 
 
 To show the cause of death, the state of the health of the de- 
 ceased prior to his being wounded may be shown. I'hillips v. 
 State, 68 Ala. 469. 
 
 The character and location of the wounds on the body of the 
 deceased may be proved to show the cause of death. People v. 
 Wright, 89 Mich. 70; Basye v. State, 45 Neb. 261. 
 
 The defendant, charged with homicide, may show that the 
 licentiousness and drunkenness of the deceased could account for 
 her death, but particular acts of drunkenness cannot be shown
 
 AMERICAN NOTES. 359 i 
 
 unless in some way related to her death. Com. v. Ryan, 134 
 Mass. 223. 
 
 A conviction cannot be supported where the circumstances are 
 consistent with the tlieory of natural death. Dreessen v. State, 38 
 Neb. 375. 
 
 The body of the deceased had finger prints on the neck, bloody 
 lips, a twisted arm, and the tongue was forward in the mouth. 
 Physicians tesdfied that he had been strangled. This was held to 
 be sufficient evidence to establish the corpus delicti. Com. v. Bell, 
 164 Pa. 517. 
 
 Where the deceased lived nine months after being wounded, 
 and tlie cause of death is doubtful, the corpus delicti is not 
 established. Treadwell v. State, 16 Tex. App. 560. 
 
 The cause of death is sufficiently shown by proof that blows 
 were given with a dangerous weapon, that deceased became 
 insensible, and soon after died. U. S. v. Wiliberger, Fed. Cas. 
 16738. 
 
 Where a child was thrown overboard, the burden is on the 
 prosecution to show that it had not already died in a fit. U. S. 
 V. Hewson, Fed. Cas. 15360. But in U. S. v. Knowles, Fed. Cas. 
 15540, 4 Sawy. 517, where defendant was charged with foilure to 
 rescue a sailor who had fallen overboard and tlie defence was that 
 the sailor was dead from the fall, it was held that defendant must 
 at least raise a reasonable doubt as to the sailor's being alive when 
 he fell into the water. 
 
 The defendant must be acquitted unless the State shows by what 
 means the deceased came to his death. Cole v. State, 59 Ark. 50. 
 But the exact weapon with which death was caused need not be 
 proved. State v. Cushing, 29 Mo. 215. 
 
 Death Indirectly Caused. 
 
 The assault of the defendant need not have been the immediate 
 cause of death, as where it brought on pleuro-pneumonia causing 
 death. Burnett v. State, 82 Tenn. 439. 
 
 A conviction will be sustained where death was brought on by 
 fright caused by the defendant's violence. Cox v. People, 80 
 N. Y. 500. 
 
 In Baker v. State, 30 Fla. 41, it appeared that the deceased had 
 been on a spree and had complained of pain in his head. The
 
 359/ AMERICAN NOTES. 
 
 immediate cause of his dcatli appeared to be a blood-clot on the 
 brain, but the defendant had given him two blows in the face not 
 ordinarily dangerous. The doctors were in doubt as to the cause 
 of the blood-clot, but a verdict of manslaughter was sustained. 
 So in State v. O'Brien, 8i Iowa, 88, a conviction of manslaughter 
 was sustained where the defendant had beaten and frightened the 
 deceased, who was afflicted with heart disease and who died 
 thirteen days later. 
 
 Accident as a Defence. 
 
 The State must prove criminal intent beyond a reasonable doubt, 
 and therefore it must show beyond a reasonable doubt that a 
 shooting was not accidental. State v. Cross, 42 W. Va. 253. 
 
 To show that a homicide was accidental, the defendant may 
 show that he carried his gun and his money in the same pocket, 
 and removed the one to get at the other. State v. Wright (Iowa), 
 84 N. W. 541. 
 
 Accident — Evidence in Rebuttal. 
 
 The theory of accident may be rebutted by proof of Prior 
 attempts. Nicholas v. Com., 91 Va. 741. 
 
 To rebut defendant's claim that he shot to frighten only, the 
 State may show the severity of the wound, its direction, and the 
 proximity of defendant when he fired. State v. Hamilton, 170 
 Mo. 377. 
 
 Where the defendant claimed that a shooting was accidental 
 when he was on his hands and knees, it was shown that the bullet 
 entered between the eighth and ninth ribs and ranged downwards. 
 State V. Turlington, 102 Mo. 642. 
 
 In Nicholas v. Com., 91 Va. 741, where the deceased came to 
 his death by drowning, the possibility of accident was rebutted by 
 the following circumstantial evidence. The boat in which the 
 defendant and deceased were, was found with three newly-bored 
 auger holes near the place where defendant sat, the holes equalling 
 in size an auger possessed by the defendant. He was guilty of 
 illicit intercourse with the deceased's wife both before and after 
 the event. He had predicted the sudden death of the deceased 
 from heart disease, and had once attempted to poison him. He 
 had that day induced the deceased to accompany him across the 
 river, knowing that the deceased could not swim. He objected
 
 AMERICAN NOTES. 359^ 
 
 to an investigation of the occurrence and behaved in a suspicious 
 manner. He was convicted of murder in the first degree. 
 
 Previous threats of the defendant received to show that the 
 homicide was not accidental. State v. Lee, 58 S. C. 335. 
 
 To show that a homicide was not accidental, it may be shown 
 that the defendant turned on a witness of the act and assaulted 
 and threatened him. Snodgrass v. Com., 89 Va. 679. 
 
 Where the defendant is charged with drowning his wife by up- 
 setting a canoe and holding her under, and he claims that he was 
 trying to save her, he may be shown to have had feelings of 
 hostility toward her. Smith v. State, 92 Ala. 30. 
 
 In Makin v. Att'y Gen., 17 Cox Cr. 704, where the crime 
 charged was the murder of an illegitimate infant by one who had 
 taken charge of it, it was shown that twelve other infants were 
 found buried at various places where the defendant had lived, that 
 their deaths had not been reported, and that some of them had 
 been received under the same circumstances as had the deceased 
 in question to show design and to rebut a claim of accident. 
 
 Evidence of Suicide. 
 
 The defendant may show the possibility or the probability that 
 the wound causing death may have been inflicted by the deceased 
 himself. State v. Lee, 65 Conn. 265. 
 
 Where defendant alleges that the deceased committed suicide 
 he need not establish it by a preponderance of the evidence. 
 Persons v. State, 90 Tenn. 291. 
 
 The defendant may show that the deceased, a pregnant un- 
 married woman, had declared her intention to commit suicide on 
 the day before her death. Com. v. Trefethen, 157 Mass. 180, 24 
 L. R. A. 235. In Blackburn v. State, 23 Ohio St. 146. the defend- 
 ant was allowed to prove such declarations, even though they were 
 made six years prior to death, such remoteness merely affecting 
 the weight of the evidence. But see State v. Kelly, 77 Conn. 266. 
 
 Suicide — Declarations of Deceased. 
 
 In Com. V. Trefethen, 157 Mass. 180, 24 L. R. A. 235, where 
 the defendant was charged with the murder of a girl who was 
 pregnant by him, it was held competent for the defendant to show
 
 359 ^ AMERICAN NOTES. 
 
 that tlie deceased knew that she was pregnant and was contem- 
 plating suicide. Evidence was offered to show that on the day 
 before her death the deceased called upon a trance medium to 
 consult her, and in the course of their conversation said she was 
 going to drown herself. The next day the deceased disappeared, 
 and later she was found drowned. It was hekl to be error to ex- 
 clude the testimony of the medium. The existence of an inten- 
 tion on the 2 2d of December is evidence that the intention may 
 have existed on the next day also, and that the intention may have 
 been carried out. Such evidence is not admissible when the inten- 
 tion was too remote in time from the act, but it was not so here. 
 
 The Court says: "The burden was on the Commonwealth to 
 prove beyond a reasonable doubt that the defendant killed the 
 deceased, and to do this the jury must be satisfied beyond a 
 reasonable doubt that she did not kill herself. The nature of the 
 case proved by the Commonwealth was such, that it was not 
 impossible that she had committed suicide. If it could be shown 
 that she actually had an intention to commit suicide, it would be 
 more probable that she did in fact commit it than if she had had 
 no such intention. If it could be shown that during the week 
 before her death she had actually attempted to drown herself and 
 had been prevented from doing it, it seems manifest that this fact, 
 according to the general experience of mankind, would have some 
 tendency to show that she might have made a second attempt, and 
 accomplished her purpose." 
 
 As to whetlier or not the deceased's declarations of her intention 
 were admissible to prove that such an intention actually existed, 
 the Court says: "On principle, therefore, we think it clear that, 
 when evidence of the declarations of a person is introduced solely 
 for the purpose of showing what the state of mind or intention of 
 that person was at the time the declarations were made, the 
 declarations are to be regarded as acts from which the state of 
 mind or intention may be inferred in the same manner as from 
 the appearance of the person or his behavior, or his actions 
 generally. In the present case, the declaration, evidence of which 
 was offered, contained nothing in the nature of narrative, and was 
 significant only as showing the state of mind or intention of the 
 deceased." See also Mutual Life Ins. Co. v. Hillmon, 145 U. S. 
 2S5 ; State v. Kelly, 77 Conn. 266.
 
 AMERICAN NOTES. 359 ni 
 
 Rebuttal of Evidence of Suicide. 
 
 In People 7'. Hamilton, 137 N. Y. 531, where the defendant 
 was charged with the murder of his wife, he set up an alibi and 
 produced a letter from his wife indicating her infidelity and that 
 she contemplated suicide. But three witnesses positively testified 
 that he was with his wife, near the scene and at tlie time of the 
 crime. The tlieory of suicide was shown to be untrue by the 
 manner in which her throat was cut. A cuff-button from defend- 
 ant's clothes, his razor, and his cane were found near the body. 
 He told two different stories as to her having his cane. The letter 
 purporting to come from his wife was shown not to be in her hand- 
 writing. The two had not lived together peaceably and the wife 
 had had defendant arrested several times for non-support. A 
 verdict of guilty was not set aside. 
 
 Where the death appears to have been either a homicide or a 
 suicide the State may show the absence of any motive for suicide 
 and tlie deceased's station and surroundings in life. State v. 
 Lentz, 45 Minn. 177. 
 
 To rebut the theory of suicide evidence of experiments may be 
 introduced showing the effect of a pistol-shot on muslin at short 
 distances. Sullivan v. Com., 93 Pa. 284. 
 
 To rebut the theory of suicide the State may show that when 
 last seen the deceased was happy and in good spirits, by testi- 
 mony of witnesses and by letters written by her. State v. Bald- 
 win, 36 Kan. I ; Morrison v. State, 40 Tex. Crim. 473 ; Com. v. 
 Trefethen, 157 Mass. 180. 
 
 Instances of Sufficient Proof. 
 
 The conviction was sustained where a body, partly burned and 
 cut to pieces, was found in the defendant's house, hair like that of 
 the deceased was found on a bloody axe, and clothing like that of 
 the deceased was found in the house. The defendant had been seen 
 burning meat, which he said was pork rinds, and he made various 
 incriminating statements. People v. Beckwith, 108 X. Y. 67. 
 
 If the injuries caused by the defendant were sufficient to cause 
 death, and no other possible cause appears, the cause of death is 
 sufficiently established against the defendant. People v. O'Connell, 
 78 Hun, 323.
 
 359 '^ AMERICAN NOTES. 
 
 Where the defendant struck the deceased, and the latter fell 
 dead, and later scalp wounds were found which penetrated the 
 skull, a verdict of guilty was not set aside, although it was shown 
 that such a wound seldom if ever causes instantaneous death and 
 that the post-mortem examination had not been a complete one. 
 State V. Lucy, 41 Minn. 60. 
 
 It is enough to show that the deceased was severely wounded 
 with a pistol, and died two days later, even though no physician 
 testifies as to cause of death. State v. Murphy, 9 Nev. 394 ; 
 compare High v. State, 26 Tex. App. 545, 8 Am. St. Rep. 488. 
 
 The commission of the crime is sufficiently proved when it 
 is shown that the defendant fired a pistol at the deceased from 
 within six inches of his breast, after a careful aim ; that the de- 
 ceased groaned and fell, and died about five minutes thereafter. 
 Mitchum v. State, 11 Ga. 615; State v. Moody, 7 Wash. 395 
 (a similar case). 
 
 Where the body of a man who had disappeared while working 
 with the defendant was afterwards found buried near the spot 
 where they worked and was identified by the clothing, color of 
 hair and beard, and the fact that a certain tooth was missing, and 
 wounds sufficient to cause death were also shown, it was held that 
 there was sufficient proof of the corpus delicti. State v, Dickson, 
 78 Mo. 438. 
 
 Corpus delicti sufficiently established, but defendant not suffi- 
 ciently identified as the criminal. State v. Crabtree, 170 
 Mo. 642. 
 
 Insufficient Proof of Corpus Delicti. 
 
 Where the defendant was charged with killing his partner, who 
 had disappeared and was last seen with the defendant, it was 
 shown that the deceased drew five hundred dollars from the bank, 
 and later the defendant had at least that much money ; that there 
 was the remains of a fire on the defendant's premises, in which were 
 found a few human bones, some buttons, teeth, and a lock of hair ; 
 the fire seemed not to have been a very hot one ; the lock of hair 
 was the same color as the hair of the man who had disappeared ; 
 it was not gray, however, while the hair of the man was gray. It 
 was held that the corpus delicti was not established. Gay v. State 
 (Tex.), 60 S. W. 771.
 
 AMERICAN NOTES. 359 ^ 
 
 Where one physician thought death due to a wound over the 
 eye, and others thought it just as probable that death was due to 
 alcoholism, the corpus delicti is not established. People v. Kerrigan, 
 84 Hun, 609. 
 
 Where it was shown that the deceased was a drunkard and a 
 prostitute, and that her death from cerebral hemorrhage might 
 have been caused by a fall while climbing through a transom, or 
 by a beating given by the defendant, a conviction was set aside. 
 McNamee v. State, 34 Neb. 288. 
 
 The cause of death is not sufficiently proved by merely proving 
 a shooting and the fact that the person shot is dead, where neither 
 the attending physician nor any one present at the death is pro- 
 duced. High V. State, 26 Tex. App. 545, 8 Am. St. Rep. 488 ; 
 compare State v. Murphy, 9 Nev. 394. 
 
 In State v. Flanagan, 26 W. Va. 116, a conviction was set aside 
 because the following evidence of the corpus delicti was not suffi- 
 cient. The deceased woman was found burned in her log cabin, 
 where she lived alone. The surrounding snow showed no tracks. 
 The defendant had been with the deceased the day before, but not 
 that night, as far as the evidence showed, and he had no motive 
 for the crime. None of deceased's property was found in defend- 
 ant's possession. The fire might easily be accounted for in other 
 ways. 
 
 In State v. Billings, 81 Iowa, 99, where defendant was charged 
 with homicide, it was shown that the killing occurred in an office 
 after an altercation, with no third person present, that two shots 
 were heard closely following each other, that defendant came 
 running out with a bullet wound in his back, and that de- 
 ceased was found with a pistol having two empty chambers near 
 his hand and a wound in his head that must have been made when 
 the revolver was within two inches of his face. These circum- 
 stances were held not sufficient to sustain a conviction for a 
 crime. 
 
 The corpus delicti was held to be insufficiently proved on the 
 following evidence. The man alleged to have been killed left in 
 company with the defendant on October 25. On the 25th of No- 
 vember succeeding, a body was found in a creek. Clothing on the 
 body was said by witnesses to belong to the man who had disap- 
 peared. He had had a considerable sum of money, and the defend-
 
 359/^ AMERICAN NOTES. 
 
 ant knew it. The defendant was later found in possession of the 
 horse tliat tlic man had ridden away. Physicians testified, on the 
 other hand, that the body was so decomposed as to have required 
 from three to five months. One witness swore that the clothing on 
 the body had never belonged to tlie man, and another testified 
 that the parties had traded horses. When the man left he 
 expressed the intention of not returning. Monk v. State, 27 Tex. 
 App. 450. 
 
 Corroboration of Confession Reqtiired. 
 
 The uncorroborated extrajudicial confession of the defendant is 
 not sufficient evidence of the corpus delicti in homicide. State v. 
 German, 54 Mo. 526, 14 Am. Rep. 481 ; Bartley v. People, 156 
 111. 234 ; Heard v. State, 59 Miss. 545. 
 
 In Paul V. State, 65 Ga. 152, the confession of the defendant 
 was corroborated by proof of the corpus delicti as follows : Near a 
 spring where he said he had switched the deceased girl were 
 found switches with evidences of use, a broken rail with blood on 
 it, and the body of the girl with a fractured skull. 
 
 A confession of the defendant that he had killed his three months' 
 old child was held to be sufficiently corroborated by the following 
 proof of the corpus delicti. Where defendant said he had buried 
 the child, the ground was found scratched up, and scattered about 
 were bits of small bones, locks of hair like that of the child, and 
 some pieces of clothing that were fairly well identified. Under the 
 Texas statute, a conviction cannot be had upon a confession 
 merely, unless the body or portions of it be found and identified. 
 Jackson v. State, 29 Tex. App. 458, 16 S. W. 247. 
 
 Where the defendant had told a witness that he hit the deceased 
 on the head and killed him, and a physician testifies that wounds 
 on the head might have caused death, the proof is sufficient. 
 Custis V. Com., 87 Va. 589. 
 
 The fact that a murder has been done is proved sufficiently to 
 permit the introduction of the defendant's confession, when it is 
 shown that the deceased disappeared without reason, that defend- 
 ant was near at hand and had threatened her life, that a skull 
 and jaw bone were found in a stream near by and identified as 
 those of the deceased by a lock of hair still attached and the shape 
 of the jaw. Gray v. Com., loi Pa. 380,
 
 AMERICAN NOTES. 359 ^ 
 
 Same Evidence to Prove Corpus Delicti afid Guilt. 
 
 The very same evidence which establishes the corpus delicti may 
 also establish the fact that the defendant committed the crime. 
 See Com. v. Williams, 171 Mass. 461 ; Com. v. Johnson, 162 Pa. 
 63 ; Gannon v. People, 127 111. 507. 
 
 In Com. V. Johnson, 162 Pa. 63, the defendant was shown to 
 have driven away in a buggy with his four year old child. He said 
 he was taking her home. He was shiftless and had refused to 
 support his child, but his wife had left the child with him. He 
 came back without the child, and the next day her hat was found 
 near the river, and later the child's body was found in the river. 
 Defendant gave contradictory and false accounts of what he had 
 done with the child, and he was convicted. 
 
 In Gannon 7'. People, 127 111. 507, 11 Am. St. Rep. 147, the 
 proof of the corpus delicti was as follows : The defendant and his 
 six year old stepson went fishing one April morning when there 
 was still snow on the ground. At noon the defendant returned 
 alone, saying that the boy was to follow with a shovel. Later the 
 defendant and another went to look for the boy and they found 
 all his clothing on the bank and his dead body naked in the 
 stream. From the clothing to the water the ground was soft, and 
 there were the tracks of a man, but no marks of a boy's bare feet. 
 At the edge of the water were prints of the boy's fingers as if he 
 had been trying to crawl out. There were some marks of violence 
 on the body. The defendant showed grief at the boy's death, 
 but he also showed that he expected to be accused of the murder. 
 He had previously been cruel to the boy. After the arrest he 
 made two desperate escapes. He was convicted. 
 
 Proof of Defendant's Guilt — Illustrative Homicide Cases. 
 
 The State need not prove the exact weapon with which death 
 was caused. State v. Gushing, 29 Mo. 215. 
 
 In the case of Cicely v. State, 13 Smedes and M. (Miss.) 203, 
 the defendant, a slave, was accused of the murder of Dr. and Mrs. 
 Longon and two children with a broadaxe. The following is 
 from the opinion at page 218: 
 
 " From this statement of the testimony, the facts which militate 
 against the accused, and lead to the conclusion of her guilt, are :
 
 359 '' AMERICAN NOTES. 
 
 " I. Her presence at the commission of the homicide, and the 
 perfect means which were at her command for the accomplishment 
 of her object. 
 
 " 2. The fact that from the door of the house, in the walk, to the 
 spot where the corpse of Mrs. Longon was found, during the night, 
 after cautious and careful examination, there were discovered but 
 two sets of tracks or ' footprints,' one of which was supposed to be 
 those of the deceased, and the other corresponded with those of 
 the accused. 
 
 "3. The fact that at the place where the homicide was com- 
 mitted the traces of a scuffle were visible, and the prints of feet 
 were discovered which corresponded witli the tracks of the accused. 
 
 "4. The fact that from the point at which the corpse was found 
 to the gate, there was found but one set of tracks, and they cor- 
 responded with those of the accused. 
 
 " 5. The prisoner's declining to advance into the light at Brown's, 
 where the witness Perry was standing with others, and her retreat 
 into a dark corner. 
 
 " 6. The statement prisoner made to witness, James E. Watts, in 
 the road between Longon's and Brown's, before any suspicion of 
 her agency in the murder had arisen in the mind of the witness. 
 She stated that after the robbers had killed Longon and his family, 
 Mrs. Longon and herself ran out of the house, and were pursued 
 by the robbers, who overtook Mrs. Longon and killed her where 
 she lay ; but that she outran Mrs. Longon, and escaped, and ran 
 over to Brown's. 
 
 " 7. The stains of blood upon the front of her dress. Witness 
 says, ' There were many specks and spots on it.' 
 
 *' 8. The blood stain upon the pantaloon pocket of Longon, 
 coupled with her possession of his purse, secreted, and her igno- 
 rance of the amount of its contents. 
 
 "9. The improbable version she gave of the whole transaction, 
 and her palpably contradictory statements." 
 
 In Richardson's " Medical Microscopy," 295, is given the following 
 account of the conviction of a woman of cutting her child's throat : 
 "Upon being searched, there was found in the woman's possession 
 a large and sharp knife, which was at once subjected to a minute 
 and careful examination. Nothing, however, was found upo'i it, 
 with the exception of a few pieces of hair adhering to the handle,
 
 AMERICAN NOTES. 359 •$" 
 
 ?o exceedingly small as scarcely to be visible. The examination 
 being conducted in the presence of the prisoner and the officer 
 remarking, ' Here is a piece of fur or hair on the handle of your 
 knife,' the woman immediately rei)licd, 'Yes, I dare say there is, 
 and very likely some stains of blood, for, as I came home, I found 
 a rabbit caught in a snare, and I cut its throat with a knife.' The 
 knife was sent to London, and with the particles of hair, subjected 
 to a microscopic examination. No trace of blood could at first 
 be detected upon the weapon, which appeared to have been 
 washed ; but ui)on separating the horn handle from its iron lining, 
 it was found that between the two a fluid had penetrated which 
 turned out to be blood — certainly not the blood of a rabbit, but 
 bearing every resemblance to that of the human body. The hair 
 was then submitted to examination. Without knowing anything 
 of the facts of the case, the microscopist immediately declared the 
 hair to be the hair of a squirrel. Now, round the neck of the 
 child at the time of the murder, there was a tippet or ' victorine,' 
 over which the knife, by whomever held, must have glided, and 
 this victorine was of squirrel's fur. 
 
 "This strong circumstantial evidence of the guilt of the prisoner 
 was deemed by the jury sufficient for a conviction, and whilst 
 awaiting execution, the wretched woman fully confessed her crime." 
 
 " In McCann v. State, 13 Smedes & M. (Miss.) 471, the body of 
 the deceased was found partly eaten by hogs, but was identified 
 by the clothing and the bones of his foot. The manner in which 
 the murder was done is shown as follows : 
 
 "It is almost certain that the murder was committed with a 
 pistol; the smoke and powder upon the surface and edges of the 
 wound, and upon the hat, show that it was fired in immediate 
 contact widi the person. The blood upon the right stirrup leather, 
 which was the side next the woods, connected with the impression 
 upon the tree, goes to show that he was shot upon his horse, and 
 the range of the ball likewise shows that the person who fired was 
 on horseback. The impression of the ball upon the side of the 
 tree next the road, and the finding of the flattened ball at the 
 foot of the tree, prove that the shot did not proceed from a per- 
 son concealed in the woods. It is very certain that the ball could 
 not have killed him after it struck the tree and fell upon the 
 ground. It is a fair conclusion, then, that the pistol was fired by
 
 359 ^ AMERICAN NOTES. 
 
 some one on horseback in the road very near to the decedent, who 
 was higher than the deceased bending forward on his small horse, 
 and that the ball entered the neck, passed through the lower part 
 of the head, and came out on the right side, detaching a portion 
 of the bone, and having nearly spent its force, struck the tree and 
 fell at its foot. As it was after night, the murderer had to be near 
 his victim to be sure of his aim. It will be remembered that the 
 prisoner rode a good-sized horse, and if he perpetrated the deed 
 from his saddle, was elevated enough above the decedent to give 
 the ball the direction it took. Soon after the report of the gun, 
 the rapid galloping of a horse was heard, going from the direction 
 of the place of the murder towards the house of old Mr. McCann ; 
 a rider was seen upon him, and he took an unfrequented bypath 
 through the woods, which led in a more direct course to the house 
 than the road. It is not shown that any one else went to the 
 house that night." McCann v. State, 13 Smedes & M. (Miss.) 
 471, 494. 
 
 Trial of John C. Coif. 
 
 One of the most dreadful trials in the history of criminal juris- 
 prudence was that of John C. Colt in New York in the year 1841, 
 reported in full in " Remarkable Trials " at page 226. 
 
 Colt was the brother of Col. Samuel Colt, the revolver manufac- 
 turer. He had an altercation in his own office with one Samuel 
 Adams, a printer, over a printing account, and killed Adams there 
 with a hatchet. No one saw the act, but the suspicion of others 
 in an adjoining room was aroused by the noises. Colt, after the 
 evidence of the prosecution was all in, admitted that he killed 
 Adams, but claimed that he did the deed in self-defence. 
 
 After killing Adams, Colt locked himself in the room, where he 
 remained until dark. That night he boxed up the body of Adams 
 and washed up the blood stains, throwing ink about to further 
 conceal the traces of the blood. He addressed the box to a per- 
 son in St. Louis, and the next morning had it carted on board 
 the vessel Kalamazoo, bound for New Orleans. The absence of 
 Adams and the suspicion of Colt led to the recovery of the body 
 before the sailing of the vessel. 
 
 When Colt was first asked about the noise in his room on the 
 previous afternoon, he asserted that he had not been in his room
 
 AMERICAN NOTES. 359 ?/ 
 
 at all that afternoon. The second time he was questioned by the 
 same party, he replied : " To tell you the truth, Mr. Wlieeler, I 
 upset my table, spilt my ink, and knocked down the books, making 
 a deuced muss." 
 
 When the body was discovered, it was much decomposed, but 
 it was identified by the clothing and by a ring worn by Mr. Adams. 
 His watch and watch key were found in Colt's trunk at liome. 
 
 To determine the cause of death and to show also that many of 
 the blows could not have been given in self-defence, the skull of 
 the murdered man himself was exhumed and produced in court. 
 This certainly must be a very unusual proceeding. That it should 
 be of doubtful propriety, unless absolutely necessary, would be in- 
 dicated by the following excerpt : 
 
 " The skull was then handed to Dr. Rogers by the coroner and 
 exhibited to the jury. Never was there a more thrilling siglit. 
 The court-room was crowded to excess, and the head was held 
 up in his fingers by Dr. Rogers. He placed the corner of the axe 
 in the hole over the left ear, which precisely fitted it. He then 
 put the hammer part in the fracture or indentation on the other 
 side, which joined in it fairly as a mould. He then explained the 
 wounds in front. It was, indeed, a dreadful sight. 
 
 "Colt held his hands over his eyes while the examination was 
 going on. 
 
 " The jaw-bone was also produced, which was broken in halves. 
 Dr. Archer went on to explain the nature of the wounds, and the 
 head was minutely examined by the jurors." 
 
 Evidence was given indicating that any one of the blows, whose 
 effects were shown, would have rendered Mr. Adams hors de com- 
 bat, and therefore indicating also that the blows had been given 
 viciously and not in self-defence. But physicians testified for the 
 defence that a man might continue to fight after receiving a fatal 
 blow on the head, and counsel argued that " General Hamilton, 
 on being shot, sprung from the ground before he fell ; and young 
 Austin, after he had been sliot in tlie head, advanced upon Selfridge, 
 and struck him some violent blows before he fell dead." 
 
 The reporter modestly adds tliat " previous to this thrilling ex- 
 amination, all the ladies in court had retired." 
 
 The report is notable also for the full confession of Colt, given 
 to the jury by on'^ of the attorneys. It admitted the killing, but
 
 359 ^ AMERICAN NOTES. 
 
 described a struggle with the deceased in which the deceased was 
 choking the defendant. This confession could not but have in- 
 jured the case of the defendant, for in it he enumerated all the 
 horrid and gruesome details of how he struck the blows, how he 
 bent and tied up the body, how he nailed the box and had it 
 taken to the ship, and how he later washed up the traces of the 
 blood. The confession gives almost a worse imjjression of the 
 defendant and his case than did the evidence of the prosecution. 
 
 The case was conducted with unusual bitterness between the 
 district attorney, Mr. Whiting, and the attorneys for the defendant, 
 Robert Emmctt and Mr. Selden. 
 
 After consitierable deliberation, the jury brought in a verdict of 
 murder in the first degree. On being sentenced Colt made some 
 remarks, e.\hibiting what the Court then characterized as " callous 
 and morbid insensibility." The defendant was sentenced to be 
 hanged. 
 
 Several desperate efforts were made to assist Colt to escape, and 
 a doctor even agreed to attempt Colt's resuscitation after he should 
 be cut down. On the day fixed for his execution he was married 
 to Caroline Henshaw, with whom he had lived as husband and 
 wife, and who had borne him a son. A few moments before he 
 was to be brought forth from his cell, he committed suicide with 
 a knife that had been secretly handed to him. At the same mo- 
 ment the cupola of the Tombs was found to be in flames. 
 
 The Trial of Professor John W. Webster. 
 
 Probably the most celebrated case in the criminal annals of the 
 United States is the case wherein Prof. John W. Webster, of the 
 Harvard Medical College, was tried for the murder of Dr. George 
 Parkman of Boston. It is celebrated not only for the standing 
 and connection of the parties affected, but for the circumstances 
 of the murder and of the concealment and discovery of the body, 
 and for the learning and ability with which the case was argued 
 and decided. 
 
 Lemuel Shaw, the great Chief Justice of Massachusetts, presided, 
 assisted by Judges Wilde, Dewey, and Metcalf. The Attorney 
 General, John H. Clifford, assisted by George Bemis, conducted 
 the prosecution ; Pliny Merrick and Edward D. Sohier, the 
 defence.
 
 AMERICAN NOTES. 359 W 
 
 It is a case also where both the corpus delicti and the guilt of 
 the defendant were almost established by circumstantial evidence, 
 and the rulings of the Court are of unusual importance and have 
 been quoted liberally throughout this work. 
 
 On November 23, 1849, Dr. George Parkman disappeared from 
 his home. He was a strict and punctual man, and his family 
 were alarmed merely by his failure to appear at dinner. The fol- 
 lowing day search was begun and rewards were offered, the entire 
 police force of Boston and many friends of Dr. Parkman engaging 
 in the search. 
 
 With considerable difficulty his course on the fatal day was 
 traced to tiie Harvard Medical College, and beyond that he could 
 not be traced. A superficial search was made at the college 
 building, but nothing was found, and no serious suspicion at first 
 attached to Professor Webster. 
 
 Gradually, however, such suspicion centred on him. It was 
 shown that he had long owed Dr. Parkman a debt which he was 
 unable to pay, that he had secured payment of the sum due by 
 a mortgage on a mineral collection, and that he had later given a 
 bill of sale of those very minerals to another man. Dr. Parkman 
 had learned of this, regarded Webster's action as contemptibly 
 dishonorable, and told him so. On this day he had gone with 
 Professor Webster's notes to demand payment once more, and 
 this time expecting to be paid. 
 
 After their disappearance, Professor Webster asserted that he had 
 paid Dr. Parkman in full, the sum being nearly $500.00, and he 
 produced the note, cancelled merely with the stroke of a pen. yet 
 he was unable to account for where he had obtained the money 
 with which to pay the note, and all the money that he actually 
 had received recently was shown to have gone elsewhere. 
 
 The janitor of the Medical College especially became suspicious, 
 and began a search on his own account. He knew that for the 
 greater part of several davs after the disappearance of Dr. Park- 
 man, including a Sunday, Professor Webster had been busy working 
 in his laboratory, with the doors locked — an unusual occurrence. 
 A hot fire had been kept in an assay furnace not often used, and 
 water had been running at unusual hours. Further, Professor Web- 
 ster's appearance had seemed strange to him, and Webster had 
 presented him with a Thanksgiving turkey — an unprecedented 
 occurrence.
 
 359 -t' AMERICAN NOTES. 
 
 At last the janitor decided to dig from the outside through tlie 
 wall of a private privy in Professor Webster's laboratory, since he 
 could not investigate the privy from the inside. Professor Webster 
 had by artifice kept the searchers away from it. In that privy the 
 janitor found portions of human legs. Immediately, Professor 
 Webster was arrested, and a thorough search of the premises was 
 made. In a tea-chest, well covered over, was found the trunk of 
 a man. In the ashes of the assay furnace were found the remains 
 of some artificial teeth and numbers of bones. 'i"he head had ap- 
 parently been wholly consumed, for no other traces were found 
 of it. 
 
 That these scattered remains were portions of Dr. Parkman's 
 body soon became clear. In the first place the other members 
 of the medical faculty, one of whom was Oliver Wendell Holmes, 
 were able to account for every cadaver that tlie college had re- 
 ceived, and they had no record of this body. Next, a careful study 
 of the remains was made by several medical men of high stand- 
 ing, a complete catalogue of the various bones and pordons found 
 was made, and in no case was any portion duplicated. That was 
 almost proof positive that all the pieces had belonged to one body. 
 Further, the hair on the trunk was like that of Dr. Parkman, the 
 skin was that of a man of about sixty (his age), and the legs were 
 well muscled out of proportion (Dr. Parkman had been a great 
 walker). The friends of Dr. Parkman were unable to identify the 
 remains positively, but all doubt was cleared up by the testimony 
 of a certain dentist who had made the set of artificial teeth. 
 The recent death of this dentist has just been noticed by the 
 newspapers, fifty-five years later, and the memories of the famous 
 case recalled. The teeth had come out of the fire in fair con- 
 dition, and still bore marks by which the dentist positively iden- 
 tified them as the same that he had made and fitted for Dr. Park- 
 man. The Doctor's mouth had been of very peculiar shape, 
 and he had ordered the teeth to be made for a special occasion 
 in a hurry, the dentist working at them all through one night ; 
 so there was reason for the dentist's clear remembrance. 
 
 When Professor Webster was first arrested he was very much 
 affected. He became so ill he could not stand, became almost 
 hysterical, and at one time bit at a glass given him with water to 
 drink. Yet later he recovered his composure and bore himself 
 well through the trial.
 
 AMERICAN NOTES. 359 ^^ 
 
 In the same vault where the legs were found were also some 
 towels marked with Webster's name and stained with blood. 
 Spots were found on some of his clothing. 
 
 It was shown that the chief of police had received certain let- 
 ters, while the search was being prosecuted, the purpose of which 
 was very evidently to direct the search into other places than the 
 college. These letters were unsigned, but were shown to be in 
 Webster's handwriting. They had been written not with a pen 
 and not with a brush, but with a swab. A stick with a wad of 
 cotton on one end was found in the laboratory. It had been 
 dipped in ink, and might have been used for writing the letters. 
 
 Some of the pliysicians testified that the body had been dis- 
 membered with professional skill; particularly was this true of the 
 removal of the sternum from the trunk. Professor Webster had 
 the skill and experience necessary. 
 
 While in the jail Professor Webster wrote a letter to his daughter, 
 containing one little suspicious remark : "Tell mamma not to open 
 the little bundle I gave her the other day, but to keep it just as 
 she received it." This bundle was found to be some accounts 
 with reference to the Parkraan debt. 
 
 The defence was attempted along three lines : First, that Dr. 
 Parkman was seen in Boston after leaving the Medical College. 
 As to this there was a little very weak evidence. Second, the 
 general unreliability of circumstantial evidence. And third, the 
 previous good character of Professor Webster, and his natural 
 conduct during the search for Dr. Parkman and up to the time 
 of being arrested. Twenty-seven prominent citizens, including 
 John G. Palfrey and Jared Sparks, the president of Harvard, were 
 introduced to testify of the defendant's good character. The pros- 
 ecution did not attempt to dispute it. 
 
 But the net of circumstantial evidence was so tightly drawn that 
 there was no escape from it. Everything pointed to Webster as 
 the guilty man. There was no reasonable doubt, either as to 
 Parkman's felonious killing or as to the agency of the defendant 
 therein. Professor Webster was found guilty of murder and sen- 
 tenced to be hanged. 
 
 The means by which the murder was done were never proved. 
 See Stone's Report and Bemis's Report.
 
 359- AMERICAN NOTES. 
 
 Poisofiinz Cases. 
 
 Cause of Death. — Circumstantial evidence may be sufficient 
 to establish tlie eorpus delieti wliere the death was caused by 
 poison. Zoldoske -'. State, 82 Wis. 580. 
 
 The detendant, charged with ])oisoning the deceased, had 
 confessed to administering stramonium. The deceased had died 
 suddenly with symptoms of stramonium poisoning, but those symp- 
 toms are similar to the symptoms of several diseases. The doc- 
 tors disagreed as to the real cause of death, and a conviction was 
 set aside. Pitts v. State, 43 Miss. 472. 
 
 The cause of death by poisoning may be sufficiently established 
 without any exi)ert testimony and without any chemical analysis. 
 Johnson v. State, 29 Tex. App. 150; Polk v. State, 36 Ark. 117. 
 
 But where there has been no analysis and no post mortem, 
 although the defendant admits giving a certain draught, he should 
 not be convicted when no motive for crime is shown and the de- 
 fendant is not shown to have known that the draught contained 
 poison. Hatchett v. Com., 76 Va. 1026. 
 
 It may be proved by circumstantial evidence that the substance 
 given to the deceased was poison. Com. v. Kennedy (Mass.), 48 
 N. E. 770. 
 
 To show that death was due to poison, a witness may testify as 
 to the actions of the deceased at the lime he is supposed to have 
 been poisoned. State v. David, 131 Mo. 380. 
 
 Expert Testimony. 
 
 Examinations of stomach of deceased by chemists, physicians, 
 and other experts. State v. Cole, 94 N. C. 958 ; State v. Smith, 
 102 Iowa, 656. 
 
 In Stephens v. People, 4 Parker Cr. Rep. (N. Y.) 396, the jury 
 were instructed to disregard so much of chemical experiments on 
 an exhumed body as were performed after a certain interested 
 party had had access to the body and might have put arsenic 
 in it. 
 
 It may be shown that a physician made a microscopical exami- 
 nation of the stomach and intestines of the deceased, that he 
 found " tartar emetic," and he may state that in his opinion the
 
 AMERICAN NOTES. 359 a* 
 
 "tartar emetic" was the cause of death. State v. Fournier, C8 
 Vt. 262. 
 
 In Com. V. Hobbs, 140 Mass. 443, it was held to be not error 
 to admit the testimony of a chemist that he had analyzed certain 
 samples of meal and bread, into which the defendant was accused 
 of putting poison, and- found that they contained white arsenic ; 
 that he had analyzed the substance known as "Rough on Rats" 
 (two boxes of which had been bought by the defendant), and 
 found that it consisted of white arsenic colored with lampblack. 
 
 Where three attending physicians of good reputation testify that 
 death was caused by morphine, and an autopsy performed by 
 them fifty-five days after death showed morphine in the stomach 
 and traces of its work througliout the body, a verdict of guilty was 
 not set aside merely because experts testified for the defendant in 
 such a way as to tend to cast a doubt upon the accuracy of the 
 State's evidence as to the cause of death. People v. Harris, 136 
 N. Y. 423; People v. Buchanan, 145 N. Y. i. 
 
 Suicide by Poison. 
 
 Where tlie defence is that the deceased committed suicide by 
 taking the poison, it is admissible to show that she had strychnine 
 and knew how to use it ; but such facts cannot be proved by hear- 
 say, and the statements of the deceased that she had strychnine 
 would be hearsay merely. State v. Kelly, 77 Conn. 266, 271. 
 
 In Shaw v. People, 3 Hun, 272, the defendant was cliarged with 
 poisoning his wife and three children. The defendant claimed 
 that the wife had poisoned the children and herself because of 
 jealousy of another woman. It was held error to exclude evi- 
 dence that the wife had asserted that she had poison and knew 
 how to use it, and that she would put the children " under the 
 sod " before the other woman should have them. 
 
 Suicide — Rebuttal. 
 
 The deceased may be shown to have had no motive for suicide 
 and to have been in a cheerful frame of mind. State v. Cole, 94 
 N. C. 958. 
 
 To show that the deceased may have taken the poison causing 
 her death medicinally, the fact that she took arsenic as a medi- 
 cine ten years previously is too remote. Goersen v. Com., 106 
 Pa. 477, 51 Am. Rep. 534.
 
 359 l^* AMERICAN NOTES. 
 
 The Molineux Case. 
 
 One of the most celebrated of i)oisoning cases of modern times 
 was the case of the People v. Molineux, i68 N. Y. 264, and al- 
 though it is not of so much value touching upon the proof of the 
 corpus delicti, yet its circumstances are well worth relating at this 
 point. It aroused an unusual amount of interest, and its circum- 
 stances can scarcely be paralleled in criminal annals. 
 
 The defendant, Roland B. Molineux, and one Harry S. Cornish 
 were both members of the Knickerbocker Athletic Club in New 
 York City. On December 24, 1898, Cornish received through 
 the mail a box containing a silver bottle holder and a blue bottle 
 bearing a "bromo seltzer" label and filled with what purported to 
 be " bromo seltzer " powder. It came apparently as a Christ- 
 mas gift from a friend. With the bottle was enclosed a small 
 Tiffany card envelope, not, however, containing the donor's card. 
 Cornish supposed the friend had forgotten the card, so he re- 
 claimed the wrapping paper from the waste-basket and preserved 
 the written address to discover from it if possible the identity of 
 the sender. The " bromo seltzer " he took to his home, which 
 was also the home of Mrs. Katharine J. Adams and her daughter. 
 A day or two later, Mrs. Adams was seized with a headache and 
 her daughter asked Cornish for some of his " bromo seltzer." He 
 prepared a dose for her himself, and she drank most of it, remark- 
 ing its peculiar taste. Cornish himself thereupon drank a small 
 portion of what remained. In a very short time Mrs. Adams was 
 dead and Mr. Cornish was sick, vomiting and in distress. 
 
 Expert chemists analyzed the contents of the "bromo seltzer" 
 bottle, the sediment of the glass from which Mrs. Adams drank, 
 and the organs of Mrs. Adams' body, in all of which was found 
 a deadly poison known as cyanide of mercury. The cause of the 
 death was therefore beyond dispute. 
 
 In order to show that this poison was sent with criminal in- 
 tent and was sent by the defendant, the following evidence was 
 produced : 
 
 Molineux and Cornish had had a serious personal disagreement, 
 each accusing the other with much bitterness. Molineux made 
 several futile efforts to get Cornish dismissed from the Knicker- 
 bocker Club, finally threatening to resign from the club if Cornish
 
 AMERICAN NOTES. 359^* 
 
 were not dismissed. This threat he carried out. It was not long 
 after till Cornish received the " bromo seltzer." 
 
 Molineux was thirty-one years of age, well educated, and an ex- 
 pert chemist. He was superintendent in the business of Morris 
 Hermann and Co., manufacturers of dry colors, in Newark, N. J. 
 He himself possessed a chemical laboratory in which were found 
 a great variety of chemicals and poisons, from which cyanide of 
 mercury could easily be produced. Thus it was shown that the 
 defendant had the requisite skill and materials with which to com- 
 mit the crime charged. 
 
 It appeared that the silver bottle holder received with the 
 "bromo seltzer" had been purchased at a store in Newark, near 
 the factory of Hermann and Co., on December 21, and the de- 
 fendant was seen near that store on that day, although the clerk 
 swore that the bottle holder was not sold directly to Molineux. 
 The box and the card envelope were both from Tiffany's, and the 
 defendant had an account there, having made recent purchases. 
 The poison package was mailed at the general post-office on De- 
 cember 23, at an hour when the defendant was usually passing 
 through that vicinity. 
 
 The fact of the existing trouble between Cornish and Molineux 
 caused suspicion to be directed toward the latter as the sender 
 of the poison ; but the immediate occasion for his arrest was as 
 follows : As a news item of interest the " New York Herald " had 
 published a. /ac simile of the address upon- the poison package. This 
 was seen by two officials of the Knickerbocker Club, and they at 
 once compared it with the letters of Molineux addressed to the 
 Club in relation to the Cornish trouble. They were at once 
 convinced that the handwriting was the same. Having this much 
 evidence as a basis, the police placed Molineux under arrest, and 
 he was indicted for the murder of Mrs. Adams. 
 
 At the trial the two Club officials referred to, and one other lay 
 witness acquainted with Molineux's handwriting, testified to their 
 belief that the poison package address was in his handwriting. 
 In addition, nine men who were handwriting experts by profes- 
 sion, 'and five other experts who held positions in banks, were all 
 agreed and testified in Court that the poison package address was 
 in Molineux's handwriting. To arrive at this conclusion they 
 were allowed to use as standards of comparison the various writ- 
 ings described in the note on this case after Chapter IV herein.
 
 359 ^* AMERICAN NOTES. 
 
 At the first trial of this case, the prosecution introduced cer- 
 tain evidence to show that about one month previously Molineux 
 had murdered one H. C. Barnet by similar means. Barnet and 
 Moluieux were friends, but were also rivals for the affection of one 
 Miss Cheeseborough. At first she had favored Molineux's suit, 
 but on becoming acquainted with Barnet, transferred her affections 
 to him. Shortly thereafter, on October 28, 1S9S, Barnet was 
 taken sick, and on November loth he died. The physicians did 
 not suspect poison, although Barnet told ihcm that he had re- 
 ceivetl a box of "Kutnow" i)owder through the mails, and said 
 that the cause of his trouble was a dose of that powder that he 
 hatl taken. 
 
 Later an analysis was made of the remainder of the " Kutnow " 
 powder, and it was found to contain cyanide of mercury. A 
 search was made for the wrapper, but none was found. In Febru- 
 ary, 1S99, the body of Barnet was exhumed, and an analysis made 
 showing the presence of cyanide of mercury. Experts testify that 
 this had been the cause of his death. 
 
 During Barnet's illness, the defendant procured flowers for Miss 
 Cheeseborough to send him. Nineteen days after Barnet's death, 
 the defendant and Miss Cheeseborough were married. 
 
 The further remarkable conduct on the part of the defendant 
 was proved in Court. Some months before Barnet's death, the de- 
 fendant rented Box 217 in a private letter-box system at 257 W. 
 42d Street, not in his own name, but in the name H. C. Barnet. 
 In this name, and through this box, he conducted a correspond- 
 ence with various medical and chemical firms, mostly firms deal- 
 ing in remedies for impotence. "■ Kutnow " powder was one of 
 these remedies. To show that Molineux was the real party 
 conducting this correspondence, the keeper of the letter-box 
 system testified that he was the man, and there was further intro- 
 duced a certain "diagnosis blank" sent to Box 217 by one of the 
 medical firms and filled out at their request by the correspondent. 
 This blank was filled out by a description of the correspondent, 
 describing himself as single, contemplating marriage, thirty-one 
 years old, chest thirty-seven inches, waist thirty-two inches, family 
 consumptive, business sedentary, complexion "yellowish," and 
 seeking treatment for impotency. This in no respect described 
 the real H. C. Barnet, but was a correct description of the defend-
 
 AMERICAN NOTES. 359 <^'* 
 
 ant. Til is blank and the letters written in Barnet's name were 
 introduced in evidence to fasten the Barnet murder upon the 
 defendant, and inferentially the Adams murder, and these writings 
 were used also as standards with which to compare the poison 
 package address. 
 
 Further still, to complete the entanglement of the defendant in 
 the circumstantial evidence net, evidence was given to show that 
 on Dec. 21, 1898, the defendant, though not in person, had 
 rented a box in another private letter-box agency at 1620 Broad- 
 way, this time in the name H. Cornish. Through this, a corre- 
 spondence similar to that in the name of Barnet was conducted, 
 and here, too, a package of " Kutnow " powder was received, but 
 never delivered to the defendant. A number of the letters written 
 in this correspondence, and signed H. Cornish, were on a peculiar 
 egg-blue paper with a certain emblem like other paper that 
 Molineux was shown to have had and used. These letters also 
 were used for comparison as well as to connect the defendant with 
 the crime charged. 
 
 The defendant was convicted of the murder of Mrs. Adams, 
 but on appeal to the Court of Appeals of New York, he obtained 
 a new trial. The Court held unanimously that the statements of 
 Barnet to his doctor to the effect that he had received the 
 " Kutnow " powder through the mails was purely hearsay and 
 inadmissible. 
 
 Four out of seven judges also held that the evidence to show 
 that Molineux murdered H. C Barnet was not admissible for the 
 purpose of proving him guilty of murdering Mrs. Adams. Evi- 
 dence of other crimes is generally not admissible, and there are 
 only five exceptions to the general rule. Proof of other crimes 
 may be made to show : "(i) Motive ; (2) Intent ; (3) The absence 
 of mistake or accident ; (4) A common scheme or plan embracing 
 the commission of two or more crimes so related to each other 
 that proof of one tends to establish the others ; (5) The identity of 
 the person charged with the commission of the crime on trial." 
 The majority of the Court held that the Barnet evidence did not 
 fall within any of the five exceptions. 
 
 There should be read on this point, however, the able dissenting 
 opinion of Parker, C.J., with whom concurred two other judges. 
 In their opinion any evidence is admissible, so far as this rule is
 
 359/* AMERICAN NOTES. 
 
 concerned, wliich tends to show that the defendant committed the 
 crime charged, and that if it does so tend it is immaterial that it 
 also tends to show that the defendant committed another crime. 
 They further believe that the Barnet evidence does so tend and 
 is admissible. They further contend that even though the five 
 exceptions laid down by the majority are the correct limitations 
 of the rule, the Barnet evidence ought to be admitted under 
 exception five. Their argument on this point is very convincing. 
 
 At the new trial, presumably without the Barnet evidence, Mr. 
 Molineux was acquitted, after having spent several years in the 
 penitentiary under death sentence. 
 
 Possession of Poison by Defenda?it. 
 
 The defendants, a man and a woman, were charged with at- 
 tempting to poison the man's wife. It was shown that they had 
 purchased chloroform and croton oil, though they denied it and 
 swore they did n't know the druggist. 
 
 The wife testified that after taking medicines given her by her 
 husband and after eating food prepared by the woman she had 
 had certain symptoms shown to be symptoms of poisoning by 
 croton oil. After eating food at the same time, the man had com- 
 plained of the same symptoms as his wife, but a note was in evi- 
 dence written by the woman defendant to the man, telling him 
 that his wife had complained of the food and that he must do 
 the same. The husband had left home telling his wife that he 
 would not be back for some time, but he approached his wife's 
 bed that night with a handkerchief saturated with chloroform. 
 
 The defendants were convicted. Com. v. Boatwright (Pa.), 2 
 Lane. Law Rev. 293. 
 
 Where defendant was charged with attempt to murder, it was 
 shown that he had mixed something that he called " Rough on 
 Rats " with meal belonging to A, that he had previously asked a 
 boy to mix the two, saying that he wished to kill A, that A and his 
 family ate of the meal and were made very sick, and that a chicken 
 fed on the meal died, and it was held that the evidence was not 
 sufficient to show that the mixture was poison. Osborne v. State, 
 64 Miss. 318.
 
 AMERICAN NOTES. 359 i"* 
 
 Sufficiency of Evidence to Connect the Defendant with the 
 Poisoning. 
 
 Where one died of arsenical poisoning, the defendant was 
 shown to have had illicit relations with the deceased's wife, to 
 have had quarrels with the deceased, and to have purchased rat 
 poison. The defendant and the wife of the deceased had put up 
 certain canned fruit and the wife was shown to have said that a 
 certain can of it contained poison. A jar not shown to be like 
 the fruit jars was found in the house with particles of arsenic in it. 
 It was not shown that the contents of that jar were given to the 
 deceased, or that the defendant put poison into any jar or gave 
 any fruit to the deceased, and a conviction was set aside. State r. 
 Bertoch (Iowa), Z^ N. W. 967. 
 
 In Com. V. Robinson, 146 Mass. 571, the defendant was charged 
 with the murder of her brother-in-law Freeman, by poison. It 
 was shown that Freeman, a married man with a wife and two 
 children, had insured his life for $2,000 in fiivor of his wife, Annie 
 Freeman. The defendant, a sister of Annie Freeman, was hard 
 pressed for the payment of debts, and had no money with which 
 to pay. She thereupon formed the plan of procuring this insur- 
 ance money, by first killing her sister, then inducing Freeman to 
 make her the beneficiary of his insurance policy, and finally killing 
 him. This plan she carried out. Annie Freeman died February 
 26; on May 13 following, the defendant was made the insurance 
 beneficiary ; on June 27, Freeman died ; and on September 23 
 the defendant's debts were paid from the insurance money. 
 
 In State v. Smith, 102 Iowa, 656, it was proved that the de- 
 ceased was insured for $3,000 in favor of the defendant, his wife; 
 that she had constant improper relations with another man whom 
 she had set up in the saloon business with money saved by her 
 husband and had said she intended to go away with this man 
 as soon as slie received the insurance money ; that about a year 
 before his death, while alone with the defendant, the deceased had 
 been shot through the head and totally blinded ; that the defendant 
 had treated her husband brutally, and had made several previous 
 attempts to poison him ; that she had told a witness that she had 
 given something to the deceased, and not to send for a doctor if 
 he became ill ; that later she filled a capsule with " Rough on Rats"
 
 359 J^* AMERICAN NOTES. 
 
 and gave it to her husband, and when her paramour startctl for 
 a doctor, she called him back, and no doctor was called. A post- 
 mortem examination showed that the death was due to arsenic ; 
 and the preparation called " Rough on Rats " was proved to be 
 mostly arsenic. This evidence was certainly sufficient to sustain a 
 conviction, but the verdict was set aside because of errors below, 
 not affecting the admissibility of the above evidence. 
 
 In State v. Cole, 94 N. C. 958, the following evidence was ad- 
 mitted and held to be sufficient to convict the defendant of wife 
 murder. The wife was shown to have been in good health and 
 spirits shortly before her death, and was alone with her husband 
 when she died. After death, her body was drawn up and her jaw 
 fallen. The defendant then told witnesses that he had given her 
 a dose of liver regulator. He had previously told one witness 
 that he had plenty of strychnine. He also detailed to witnesses 
 an account of a previous similar attack sustained by his wife eleven 
 years before. The attending physician at that former time was 
 allowed to testify that previously thereto he had let the defendant 
 have strychnia "to bait crows," and that in his opinion the 
 woman's attack was caused by strychnia. 
 
 The body of the deceased was exhumed several months after 
 burial, the stomach removed and turned over to a chemist, who 
 reported that it contained strychnia and that strychnia was the 
 cause of death. 
 
 After his wife's death the defendant was shown to have given 
 away a bottle of strychnia. 
 
 Here the symptoms related by the defendant, the chemist's 
 examination, the possession of poison by the accused, his oppor- 
 tunity to give it, and his suspicious conduct all pointed to the 
 conclusion that death was due to poison administered by him. 
 
 Infanticide Cases. 
 
 Proof of Corpus Delicti. — The corpus delicti was not sufficiently 
 established by the confession of the mother that her child was born 
 alive and that she put it in a certain spring, when the body was 
 not found in the spring and death by drowning was not proved. 
 Harris v. State, 28 Tex. App. 308, 19 Am. St. Rep. 837.
 
 AMERICAN NOTES. 359 /* 
 
 Infant Must Have Been Born Alive. 
 
 It must be proved that the child was born ahve and that it had 
 a complete and separate existence of its own. State v. McKee, 
 I Add. (Pa.) i; Com. v. O'Donohue, 8 Phila. 623. 
 
 Where the only evidence that the child was born alive is the 
 opinion of a physician and the mother testifies it was born dead, 
 the evidence is not sufficient to convict. In re Davis (N. Y.), 
 3 City H. Rec. 45. 
 
 Where no violence is shown and it is not proved that the child 
 was born alive, flight of the mother and concealment of the birth 
 are not sufficient to prove crime. Sheppard v. State, 17 Tex. 
 App. 74. 
 
 A mother was convicted of murder on the following evidence : 
 a dead child was found in a dry well near by, the defendant 
 had shortly before showed signs of pregnancy, and no other 
 woman near by had, her bed-clothing was bloody, she had been 
 seen washing bloody clothes, and would not say whose, Echols 
 V. State, 81 Ga. 696. 
 
 To prove an infanticide, a non-expert who had seen the body 
 was allowed to say that he thought it fully developed. Hubbard v. 
 State, 72 Ala. 164. 
 
 Cause of Death. 
 
 Where a woman in labor went into a thicket and later a newly 
 born child was found dead with bruises on the head and hips, 
 lying in a gully partly filled with water, a conviction was sustained. 
 Peters v. State, 67 Ga. 29. 
 
 In Warren v. State, 30 Tex. App. 57, the defendant, the father 
 of the child, who had married its mother only a month before its 
 birth, took the child away in a buggy one night, and later its body 
 was found under a bush. It was shown, however, that the child 
 was born at seven months and was very puny, that it was gasping 
 when given to him by his wife's mother, and that it bore no marks 
 of violence. A conviction for murder was set aside. 
 
 A new-born infant was found out of doors and returned to the 
 mother. The next day it died, and the death might have been 
 due to exposure or to smothering. The cause of death was not 
 sufficiently shown. Lee v. State, 76 Ga. 49S.
 
 3597* AMERICAN NOTES. 
 
 In Com. V. Harman, 4 Pa. 269, the accused was convicted of 
 murdering her infant child nine months old. She took the child 
 away at 6 a. m. and came back at 9 a. m., saying that she h-ad 
 given it away. She had been seen with a shovel, in the meantime, 
 going toward a stream. The body was discovered buried there, 
 the clothing damp, and the general appearance indicating death 
 by drowning. 
 
 Sufficiency of Proof of Dtfendaiif s Gtiilt. 
 
 The defendant, father of an illegitimate infant, was convicted 
 of murdering it on the following evidence : The mother testified 
 that defendant took the child when they were out riding to- 
 gether and came back in half an hour saying he had left it with 
 a family, — a story shown to be false, while the body was found 
 in a river near by and identified. Warren v. State (Tex.), 26 
 S. W. 403. 
 
 In Re Gardner, 5 City H. Rec. (N. Y.) 70, the defendant was 
 acquitted of the murder of her infant, although she had con- 
 cealed its birth, and it was found dead with a fractured skull in 
 a closet to which the mother (defendant) had the key. 
 
 Where the mother of the child testified that she placed it in the 
 cistern, where the body was found, immediately after its birth and 
 with no one's knowledge, it was held that there was not enough 
 evidence to convict the father of the crime, though he had oc- 
 cupied the same room with the mother, had objected to any 
 examination by physicians, and denied all knowledge of the 
 woman's confinement, and the infant was found with a string 
 tightly wound about its neck. Josef v. State, 34 Tex. Cr. Rep. 
 446, 30 S. W. 1067. 
 
 The defendant was the father of an illegitimate infant and was 
 charged with its murder. Its mother had left the child with him 
 in a buggy and he had driven away and returned without it. 
 Two weeks later the child's body was found well preserved, but 
 with wounds on it. An infant's dress was found in the manger 
 of the horses he had driven. Expert evidence was introduced to 
 show that the body could have been dead all of the two weeks 
 without decomposition. The defendant was convicted. State v. 
 Cunningham (Iowa), 82 N. W. 775.
 
 AMERICAN NOTES. 359 >^'* 
 
 In Johnson v. State (Tex.), 24 S. VV. 285, where defendant was 
 charged with murdering his daughter's child begotten by him, and 
 his defence was that she had never been pregnant, the testimony 
 of the daughter, a doctor, and a mid-wife was sufficient to over- 
 come that of the defendant, his wife, and his son.
 
 ;6o FORCE OF CIRCUMSTANTIAL EVIDENCE 
 
 CHAPTER VIII. 
 
 OF THE FORCE AND EFFECT OF CIRCUMSTANTIAL 
 EVIDENCE.— CONCLUSION. 
 
 Section i. 
 
 GENERAL GROUNDS OF THE FORCE OF CIRCUM- 
 STANTIAL EVIDENCE. 
 
 In considerinof the force and effect of circum- 
 stantial evidence, the credibility of the testwwny, 
 as distinguished from the credibiHty of \k\^fact, is 
 assumed, since it is a quahty essential to the value of 
 circumstantial, in common with all moral, evidence. 
 
 Our faith in moral evidence is grounded, as 
 we have seen, upon our confidence in the perma- 
 nence of the order of nature, and in the reality and 
 fidelity of the impressions received by means of 
 the senses which connect us with the external 
 world and with other men ; and upon the laws of 
 our moral and intellectual being, the immutability 
 of moral distinctions, and the authority of con- 
 science {a) ; so that if we could correctly estimate, 
 and were able to eliminate, the various disturbing 
 
 {a) See Ch. i., section 3, p. 5, supra.
 
 GENERALLY. 36 1 
 
 influences which tend to divert men from the path of 
 truth and rectitude, our reasonings and conclusions 
 would possess all the force of demonstration. 
 
 The silent workings, and still more the explosions, 
 of human passion which bring to light the darker 
 elements of man's nature, present to the philoso- 
 phical observer considerations of intrinsic interest ; 
 while to the jurist, the study of human nature and 
 human character with its infinite varieties, especi- 
 ally as affecting the connection between motive and 
 action, between irregular desire or evil disposition 
 and crime itself, is equally indispensable and difficult. 
 No department of inquiry demands more constant 
 watchfulness or more habitual and patient care and 
 thought. 
 
 The distinct and specific proving power of circum- 
 stantial evidence, as incidentally stated in a former 
 part of this Essay, depends upon its incompatibility 
 with any reasonable hypothesis other than that 
 of the truth of the principal fact in proof of which 
 it is adduced [d) ; so that, after the exhaustion of 
 every other mode of solution, we must either 
 conclude that the accused has been guilty of the 
 fact imputed, or renounce as illusory the results 
 of consciousness and experience, and such know- 
 ledge as we possess of the workings of the human 
 mind {c). 
 
 Conclusions thus formed are simple inferences of 
 the understanding, aided and corrected by the appli- 
 
 {b) See Ch. ii., section 3, p. 34, supra. See also Rule 4, p. 262, supra. 
 {c) Tiaite de la Preuve, par Mittermaier, ch. 59.
 
 o 
 
 62 FORCE OF CIRCUMSTANTIAL EVIDENCE 
 
 cation of those rules of evidence and those pro- 
 cesses of reason which sound and well-ripened 
 experience has consecrated as the best methods of 
 arriving at truth ; and they constitute that moral 
 CERTAINTY upon which men securely act in other 
 great and important concerns, and upon which they 
 may therefore safely rely for the truth and correctness 
 of their conclusions in regard to those events which 
 fall within the province of criminal jurisprudence. 
 
 Many continental codes, following the principles 
 of the civil law, prescribe imperative formula; 
 descriptive of the kind and amount of evidence 
 requisite to constitute legal proof. Those principles 
 formerly prevailed in the reception of evidence in 
 the Ecclesiastical and in the Admiralty Courts [d) in 
 this country, so far as to require the testimony of 
 a plurality of witnesess ; but such a restriction has 
 long ceased to be in force. The diversities of 
 individual men render it impracticable thus definitely 
 to estimate the infinite combinations of human 
 motives and actions ; or to fix, with arithmetical 
 exactness, standards of proof which shall operate 
 with unvarying force upon the minds of all men. 
 Such arbitrary rules are not merely harmless, nor 
 simply superfluous ; they are often dangerous to the 
 cause of truth ; they operate as fetters on the con- 
 science of the Judge, obliging him occasionally to 
 determine contrary to his own convictions of truth ; 
 are unnecessary for the protection of the innocent, 
 and effective only for the impunity of the guilty {e). 
 
 {d) See the preamble to 28 Hen. viii. c. 15. 
 
 (e) Trait d de la Preuve, par Mittermaier, ch. 8. Cf. pp. 29-31, supra.
 
 GENERALLY. 363 
 
 A learned Judge of one of our ecclesiastical courts, 
 after commenting on the ancient but now obsolete 
 rule of those courts, that one witness is not sufficient 
 to establish the fact of adultery, said, "To this 
 authority I readily submit, and I am bound to do 
 so ; but I must honestly say that I do it upon 
 compulsion. I am bound by this rule, and so long 
 as it remains a rule of these courts, so long as more 
 evidence is required to prove an act of adultery 
 than to find a man guilty of murder, it will be 
 my duty to obey that rule " {/). 
 
 The very few cases in which the law of Eng- 
 land requires a particular amount of evidence, as on 
 trials for high treason, where two witnesses are 
 required, and in cases of perjury, where there must 
 be two witnesses, or the testimony of one witness 
 confirmed in some material particular by independent 
 evidence, are grounded upon different principles ; in 
 the former, upon motives of policy, for the protection 
 of persons charged with political crime from becom- 
 ing the victims of party violence ; and in the latter, 
 because mere contradiction by the oath of a single 
 witness has never been considered as of itself sufficient 
 to prove that the accused has been guilty of wilful 
 falsehood, and the old rule has not been altered by 
 Act of Parliament. 
 
 Since the Criminal Evidence Act, 1898, the same 
 reasoning applies in all cases where the prisoner 
 gives evidence on his own behalf, but has special 
 
 (/) Per Dr. Lushington, in Taylor v. Taylor^ 6 Eccl. & Mar. Cases, 
 at p. 563.
 
 364 FORCE OF CIRCUMSTANTIAL EVIDENCE 
 
 force in cases where there is a peculiar risk of 
 false evidence, notably in charges of assaults upon 
 women and children and kindred offences. Female 
 chastity is so highly prized, and is of such social 
 importance, that there is often very great temp- 
 tation to a woman to screen herself by making a 
 false or exaggerated charge, and supporting it with 
 minute details of evidence of a kind, which the 
 female mind seems peculiarly adapted to invent. 
 Unless, therefore, the story of the prosecutrix is 
 corroborated, it becomes a mere question of oath 
 against oath, and although the law does not in 
 these cases technically require corroborative evi- 
 dence, except in certain cases under the Criminal 
 Law Amendment Act (^), judges are in the habit of 
 telling juries that it is not safe to convict the 
 prisoner upon the unsupported statements of the 
 woman or child. In the case of charges by 
 children, there is the additional difficulty that they 
 are constantly too young and too ignorant to have 
 the least appreciation of the gravity of the charge 
 made, and very often to have any moral idea at all ; 
 and it is frequently impossible to apply to their 
 stories the tests by which, to some extent, the 
 
 (^) 48 & 49 Vict. c. 69, ss. 2, 3, and 4. Corroborative evidence 
 is also required in affiliation proceedings (8 Vict. c. 10, s. 6 ; and 35 
 & 36 Vict. c. 65, s. 4) and under section 15 of the Prevention of 
 Cruelty to Children Act, 1894 (57 & 58 Vict. c. 41), as well as in 
 actions for breach of promise of marriage. Such actions were, by 
 s. 2, excepted from 14 & 15 Vict. c. 92 which made plaintiffs and 
 defendants in civil suits competent witnesses. The disability of the 
 parties to an action for breach of promise of marriage to give 
 evidence, was removed by 32 & 33 Vict. c. 68, s. 2 ; but the condi- 
 tion was imposed that the evidence of the plaintiff must be corroborated 
 in some material particular.
 
 GENERALLY. 365 
 
 falsehoods and exaggerations of grown-up persons 
 can be detected, or to tell how far they are relating 
 what happened, or what has been drilled into them 
 by parents or friends. 
 
 Upon an analogous principle, the evidence of an 
 accomplice requires corroboration. It has been 
 often said that this is not a rule of law, but that it 
 is, nevertheless, the duty of the Judge to insist 
 with juries that they ought not to convict upon the 
 unsupported testimony of an accomplice. To the 
 Editor it has always seemed that if it is the duty of 
 the Judge to tell the jury that they ought not 
 to convict under such circumstances, it should be 
 the duty of the jury to follow what the Judge ought 
 to tell them. He acted upon this view at the 
 Central Criminal Court in an important case {k) in 
 which he withdrew from the jury one of the counts 
 in an indictment upon which there was very clear 
 and unshaken evidence by the accomplice, but 
 nothing else ; and he is informed by Sir Arthur 
 Charles that, in a case tried at Winchester, in which 
 he was, when at the bar, counsel for the prosecution, 
 Mr. Baron Bramwell ruled in the same way, and 
 upon the same grounds ; and, refusing to leave the 
 case to the jury, directed an acquittal where there 
 was no corroboration of the accomplice. 
 
 If it be proved that a party charged with crime 
 has been placed in circumstances which commonly 
 operate as inducements to commit the act in ques- 
 
 {h) Reg. V. Wilde, C. C. C, May 1895. The ruling was at the close 
 of the case for the prosecution, and on May 23.
 
 366 FORCE OF CIRCUMSTANTIAL EVIDENCE 
 
 tion — that he had so far yielded to the operation of 
 those inducements as to have manifested the dis- 
 position to commit the particular crime — that he has 
 possessed the requisite means and opportunities of 
 effecting the object of his wishes— that recently 
 after the commission of the act he has become 
 possessed of the fruits or other consequential advan- 
 tao^es of the crime — if he be connected with the 
 corpus delicti by any conclusive mechanical circum- 
 stances, as by the impressions of his footsteps, or 
 the discovery of any article of his apparel or 
 property at or near the scene of the crime — if there 
 be relevant appearances of suspicion connected 
 with his conduct, person, or dress, and such as 
 he might reasonably be presumed to be able, if 
 innocent, to account for, but which, nevertheless, he 
 cannot or will not explain — if, being put upon his 
 defence recently after the crime, under strong 
 circumstances of adverse presumption, he cannot 
 show where he was at the time of its com- 
 mission — if he attempt to evade the force of those 
 circumstances of presumption by false or incredible 
 pretences, or by endeavours to evade or pervert the 
 course of justice — the concurrence of all or of many 
 of these cogent circumstances, inconsistent with the 
 supposition of his innocence and unopposed by 
 facts leading to a counter-presumption, naturally, 
 reasonably, and satisfactorily establishes the moral 
 certainty of his guilt ; if not with the same kind of 
 assurance as if he had been seen to commit the 
 deed, at least with all the assurance which the 
 nature of the case and the vast majority of human 
 transactions admit. In such circumstances we are
 
 GENERALLY. 367 
 
 justly warranted in adopting, without reserve, the 
 conclusions to which the mind is naturally con- 
 ducted " by a broad, general, and comprehensive 
 view of the facts, and not relying upon minute 
 circumstances with respect to which there may be 
 some source of error "(?'), and in regarding the 
 application of the sanctions of penal law as a mere 
 corollary. 
 
 Nor can any practice be more absurd and 
 unjust than that perpetuated in some modern 
 codes, which, while they admit of proof by circum- 
 stantial evidence, inconsistently deny to it its 
 logical and ordinary consequences. Thus the penal 
 code of Austria [k) prohibits the application of capital 
 punishment to the crime of murder, " ou I'inculpe 
 n'est convaincu que par le concours des circon- 
 stances"; but nevertheless the party may be 
 sentenced to an imprisonment of twenty years ; and 
 the same indefensible practice prevails in many 
 other States, though with a considerable diversity 
 as to the maximum penalty (/). How wise and 
 just the emphatic condemnation of the French 
 Papinian : " Ut Veritas, ita probatio, scindi non 
 potest : quai non est plena Veritas est plena falsitas, 
 non semiveritas ; sic, quae non est plena probatio, 
 plane nulla probatio est " (w). 
 
 if) Per Pollock, L.C.B., in Reg. v. Mannmg and Wife, see pp. 265 
 and 269, SKpra. 
 
 {k) Premiere partie, art. 430. 
 
 (/) See note, p. 32, supra^ and Mittermaier, Traitd de la Preuve, c. 61. 
 
 (w) Cujas, Cod. t. de Leg., and see Gabriel, 67.
 
 368 FORCE OF CIRCUMSTANTIAL EVIDENCE 
 
 Section 2. 
 
 considerations which augment the force of cir- 
 cumstantial evidence in particular cases. 
 
 Such are the considerations which constitute the 
 force and effect of circumstantial evidence m general \ 
 but there are some collateral considerations which 
 augment the force of circumstantial evidence in 
 particular cases, and greatly increase the strength 
 and security of our convictions, upon which it 
 will be expedient to enlarge. 
 
 (i.) The most important of these auxiliary con- 
 siderations arises from the concurrence of many or 
 of several separate and independent circumstances 
 pointing to the same conclusion, especially if they be 
 deposed to by unconnected witnesses. In proportion 
 to the number of cogent circumstances, each sepa- 
 rately bearing a strict relation to the same inference, 
 the stronger their united force becomes, and the more 
 secure becomes our conviction of the moral certainty 
 of the fact they are alleged to prove, as the 
 intensity of light Is increased by the concentration 
 of a number of rays to a common focus. It Is 
 forcibly remarked by a learned writer (;2), that " the 
 more numerous are the particular analogies, the 
 greater Is the force of the general analogy resulting 
 from the fuller Induction of facts, not only from the 
 mere accession of particulars, but from the addi- 
 tional strength which each particular derives by 
 
 («) Bishop Hampden.
 
 IN PARTICULAR CASES. 369 
 
 b-'Ing surveyed jointly with other particulars, as one 
 among the correlative parts of a system." Although 
 neither the combined effect of the evidence, nor any 
 of its constituent elements, admits of numerical 
 comi)utation, yet with the number of independent 
 circumstances and witnesses, its cogency increases 
 according to a geometrical rather than an arith- 
 metical progression. The effect of a body of circum- 
 stantial evidence is sometimes compared to that of 
 a chain, but the metaphor is inaccurate, since the 
 weakest part of a chain is also its strongest. Such 
 evidence is more aptly to be compared to a rope 
 made up of many strands twisted together. The 
 rope has strength more than sufficient to bear the 
 stress laid upon it, though no one of the filaments of 
 which it is composed would be sufficient for that 
 purpose [o). These remarks are applicable with 
 especial force to the written enumeration of a 
 number of minute facts " multiplying beyond calcu- 
 lation the means of detecting imposture ; serving 
 the purpose of an accuser by hints and allusions 
 only, such as would be found in genuine corre- 
 spondence, not by those clear and positive mani- 
 festations of guilt by which an eager partisan 
 betrays his forgeries " {/>). 
 
 The increase of force produced by the concurrence 
 of independent circumstances is analogous to that 
 which is the result of the concurrence of several 
 independent witnesses in relating the same fact ; and 
 if these elements admitted of numerical valuation, 
 
 {6) Reid's Essays on the Intellectual Powers, Essay vii. c. iii. 
 {P) Sir James Mackintosh. 
 
 C.E. B B
 
 3/0 FORCE OF CIRCUMSTANTIAL EVIDENCE 
 
 it has been said that their combined effect would be 
 capable of being represented by a fraction, having 
 for its numerator the product of the chances favour- 
 able to the testimony of each witness, and for its 
 denominator, the sum of all the chances, favourable 
 and unfavourable, the unfavourable chances being 
 the product of the several deficiencies of the wit- 
 nesses. Whether the supposed composition of the 
 numerator and denominator is mathematically 
 accurate may be open to question, but the chances 
 would certainly be represented by some such frac- 
 tion. If, however, in such case the witnesses be 
 dependent on each other, so that the testimony of 
 the second depends for its truth upon that of the 
 first, that of the third upon that of the second, and 
 so on, then the effect of the evidence diminishes 
 with every increase in the number of the witnesses 
 or the facts, just as an increase in the denominator 
 of a fraction reduces it to one of inferior value (q). 
 
 A learned writer has illustrated the subject by a 
 case which at first sight seems an extreme one, and 
 it has occasionally been pressed in argument with 
 much force (r). " Let it be supposed," says he, 
 " that A. is robbed, and that the contents of his 
 purse were one penny, two sixpences, three shillings, 
 four half- crowns, five crowns, six half-sovereigns, 
 and seven sovereigns, and that a person appre- 
 hended in the same fair or market where the rob- 
 bery takes place is found in possession of the same 
 
 {q) 2 Kirwan's Logic, c. vii. Hartley's Obs. c. Hi. s. 2, prop. LXXX. 
 
 (r) See the trial of the Rev. Ephraini Avery^ charged with the 
 murder of Sarah Maria Cornell, before the Supreme Court of Rhode 
 Island, May, 1833. (Boston.)
 
 IN PARTICULAR CASES. 37 1 
 
 remarkable combination of coin and of no other, 
 but that no part of the coin can be identified ; and 
 that no circumstances operate against the prisoner 
 except his possession of the same combination of 
 coin : here, notwithstanding the very extraordinary 
 coincidence as to the number of each individual 
 kind of coin, althouo^h the circumstances raise a 
 high probability of identity, yet it still is one of 
 an indefinite and inconclusive nature " {s). The pro- 
 bability that the coins lost and those discovered 
 are the same is so great, that perhaps the first 
 impulse of every person unaccustomed to this kind 
 of reasoning is to conclude that they certainly are 
 so ; yet, nevertheless, the case is one of probability 
 only, the degree of which is more or less capable of 
 exact calculation ; but if that degree of probability, 
 high as it is, were sufficient to warrant conviction 
 in the particular case, it would be impossible to 
 draw the distinction between the degree of pro- 
 bability which would and that which would not 
 justify the inHiction of penal retribution in other 
 cases of inferior probability. In the case of a small 
 number of coins, two or three for instance, the 
 probability of their identity would be very weak ; 
 and yet the two cases, though different in degree, are 
 in principle the same ; and the chance of identity 
 is in both cases capable to some extent of precise 
 determination. The learned writer adds, that 
 " although the fact taken nakedly and alone, with- 
 out any collateral evidence, would in principle be 
 inconclusive, yet, if coupled with circumstances of a 
 conclusive tendency, such as flight, concealment of 
 
 {s) Starkie's Law of Evidence (Ed. 1853), p. 854. 
 
 B B 2
 
 372 FORCE OF CIRCUMSTANTIAL EVIDENCE 
 
 the money, false and fabricated statements as to the 
 possession, it might afford strong and pregnant 
 evidence of guilt for the consideration of the jury." 
 In like manner it would be difficult to resist the 
 inference of the identity of the coins, if in the case 
 supposed they were scarce or foreign ones. 
 
 Few facts, however, are absolute or free from 
 qualifying circumstances ; still fewer are capable of 
 numerical estimation. The veracity of witnesses 
 also is generally open to question, and the cases to 
 which this kind of reasoning is applicable, if any such 
 there be, must be very rare. Every attempt to 
 apply such estimation to the combination of facts 
 and probabilities would give a product affected by 
 the same sources of error and uncertainty, as affect 
 its separate elements ; and in all judgments grounded 
 upon circumstantial evidence, this fundamental differ- 
 ence between moral and mathematical certainty must 
 be borne in mind. " It were absurd," declares a 
 philosophical writer, " to say that the sentiment of 
 belief produced by any probability is proportioned 
 to the fraction which expresses that probability ; 
 but it is so related to it, or ought to be so, as to 
 increase when it increases, and to diminish when it 
 diminishes " (/). It is manifest, however, that the 
 effect of the concurrence of many witnesses, and the 
 conjunction of many separate circumstances, is to 
 add greatly to the force of each ; and if the credit 
 of the witnesses be unimpeachable, and the hypo- 
 theses of confederacy and error be excluded, they 
 may lead to an irresistible conviction that the facts 
 
 (/) 4 Playfair's Works, 437.
 
 IN PARTICULAR CASES. 373 
 
 to which they relate are true. The case suggested 
 is that of circumstantial evidence in its most cogent 
 form ; and in such case the conclusion to which 
 its various elements converge must often be regarded 
 as morally certain. 
 
 (2.) Apart from the direct effect of that pro- 
 bability which results from a concurrence of inde- 
 pendent witnesses or circumstances, the security of 
 our judgments is further increased by the con- 
 siderations that, in proportion to the number of 
 such witnesses or circumstances, confederacy is 
 rendered more difficult, and that increased oppor- 
 tunities and facilities are afforded of contradicting 
 some or all of the alleged facts if they be not true. 
 To preserve consistency in a work even professedly 
 of fiction, where all the writer's art and attention 
 are perpetually exerted to avoid the smallest ap- 
 pearance of discrepancy, is an undertaking of no 
 common difficulty: and it is obvious that the diffi- 
 culty must be still greater of preserving coherency 
 and order in a fabricated case which must be sup- 
 ported by the confederacy of several persons, where 
 even a slight variation in any of the minute circum- 
 stances of the transaction or of its concomitants may 
 lead to detection and exposure. On the other hand, 
 though, if the main features of the case do not satis- 
 factorily establish guilt, it is not safe to rely upon very 
 minute circumstances (/^), yet, if the statements of the 
 witnesses are based upon realities, the more rigorously 
 they are sifted the more satisfactory will be the 
 general result, from the development of minute 
 
 (u) Per Rolfe, B., in Reg. v. Rush, Norfolk Spring Ass. 1849.
 
 374 FORCE OF CIRCUMSTANTIAL EVIDENCE 
 
 indirect, and unexpected coincidences in the 
 attendant minor particulars of the main event (x). 
 It was happily remarked by Dr. Paley, that " the 
 itndcsioiiedness of the agreements (which unde- 
 signedness is gathered from their latency, their 
 minuteness, their obliquity, the suitableness of the 
 circumstances in which they consist, to the places in 
 which those circumstances occur, and the circuitous 
 references by which they are traced out) demon- 
 strates that they have not been produced by medita- 
 tion or by any fraudulent contrivance. But coin- 
 cidences from which these causes are excluded, and 
 which are too numerous and close to be accounted 
 for by accidental concurrences of fiction, must 
 necessarily have truth for their foundation " (jj'). 
 The same writer also justly remarks, that " no 
 advertency is sufficient to guard against slips 
 and contradictions when circumstances aie multi- 
 plied " (s). Hence it is observed, in courts of 
 justice, that witnesses who come to tell a concerted 
 
 {x) A remarkable illustration of the truth of this observation 
 occurred within the Editor's experience. He had, in the year 1889, 
 to try at Taunton Assizes a young man named Reyland for murder. 
 After a careful study of the depositions, and a visit to the spot where 
 the murder was committed and the various localities mentioned by the 
 witnesses, he came to the conclusion that it was impossible then to 
 form any opinion as to the guilt or innocence of the prisoner, and that 
 the sohitii n of that question would depend upon a great number of 
 small incidents and facts which had not so far been investigated, but 
 which must be carefully inquired into. If the prisoner was innocent 
 he felt confident the new facts would be in his favour ; if not, they 
 would be against him. In every single instance the new matter 
 elicited was unfavourable to the prisoner. He was convicted and 
 executed, having fully confessed his guilt. See also p. 176, supra. 
 
 i^y) Paley's Evid., P. ii. c. vii. ; compare Whately's Rhet. p. i. c. ii. 
 s. 4 ; Greenleaf s Law of Evidence, P. I. ch. 3, sections 13 &: 13a. 
 
 iz) HoriE Paulinae, c i.
 
 IN PARTICULAR CASES. 3/5 
 
 Story are always reluctant to enter into particulars, 
 and perpetually resort to shifts and evasions to gain 
 time for deliberation and arrangement, before they 
 reply directly to a course of examination likely to 
 bring discredit upon their testimony. 
 
 It must nevertheless be admitted that history and 
 experience supply abundant evidence that it would 
 be most erroneous in the abstract to decide a 
 matter of fact by the numbers of either witnesses 
 or incidents, and that there have been extraordinary 
 cases of false charges, most artfully and plausibly 
 supported by connected trains of feigned circum- 
 stances. 
 
 But considering the circumstances of the class of 
 persons liable to be accused of crime — their depriva- 
 tion of personal freedom — their usual lack of friends, 
 of money, and professional aid — their imperfect 
 knowledge of the facts proposed to be proved — their 
 frequent inability to understand how the facts bear 
 upon the question of their guilt or innocence — the 
 alleged facility of disproof is often more imaginary 
 than real. Lord Eldon thus forcibly expressed him- 
 self on this question : " I have frequently thought 
 that more effect has been given, than ought to have 
 been given, in what is called the summing-up of a 
 Judge on a trial, to the fact, that there has not been 
 the contradiction on the part of the defence which it 
 is supposed the witnesses for the accusation might 
 have received. ... It may often happen that, in the 
 course of a trial, circumstances are proved which 
 have no bearing on the real question at issue ; and
 
 3/6 FORCE OF CIRCUMSTANTIAL EVIDENCE 
 
 it may also happen, that facts are alleged and 
 sworn to by witnesses which it is impossible for 
 the accused party to contradict ; circumstances may 
 be stated by witnesses which are untrue ; yet they 
 may not be contradicted, because the party injured 
 by them, not expecting that that which never had 
 any existence would be attempted to be proved, 
 cannot be prepared with opposing witnesses. So, 
 also, in cases in which an individual witness speaks 
 to occurrences at which no other person was present 
 but himself. There it may be absolutely impos- 
 sible to contradict him " [a). 
 
 Many of the disadvantages under which prisoners 
 were placed in Lord Eldon's time have been removed 
 or greatly diminished. They now have a ri^/ii to 
 require, upon payment of a reasonable sum, copies of 
 the depositions upon which they were committed or 
 held to bail [d) by a justice of the peace — also of any 
 evidence called on their own behalf (c) ; and this right 
 has been extended to the evidence g-iven before the 
 coroner in cases of committal upon a coroner's 
 inquisition (d). An enforceable legal right to have 
 copies of the evidence proposed to be given at 
 the trial does not exist with regard to evidence dis- 
 covered in the interval between the committal and 
 the trial, or other additional evidence which the 
 prosecution may wish to call ; nor where the indict- 
 ment is found without previous committal. Copies of 
 
 (a) Hansard's Pari. Deb., New Series (1820), vol. iii. col. 1445. 
 (d) The Indictable OiYences Act, 1848 (11 & 12 Vict. c. 42), following 
 an earlier Act of Will. IV. 
 (c) 30 & 31 Vict. c. 35, s. 3. (^) 50 & 51 Vict. c. 71, s. 18 (5).
 
 IN PARTICULAR CASES. 377 
 
 all evidence of this character ought to be given to 
 the prisoner, and it was always the subject of 
 very strong comment where this was not done ; but 
 it was decided that the court could not for that 
 reason reject it (t^). It is, however, within the 
 competence of the Judge to express his opinion that 
 the evidence ought not to be given [/) if he thinks 
 its admission unfair ; such an intimation is always 
 attended to, and there is at the present day seldom 
 any foundation for complaint on this score. The 
 provisions of the Vexatious Indictments Act, 
 together with the opportunity every accused person 
 now has of givinor his own evidence on oath, and of 
 affording a full explanation or contradiction of the 
 evidence against him, practically save him trom 
 oppression, and his position, so far as knowledge of 
 the evidence against him is concerned, is much better 
 than that of a defendant in a civil cause, so that the 
 argument founded on the absence of contradictory 
 or explanatory evidence may in many cases, at all 
 events, be now urged with more justice and effect 
 than formerly. There are, however, case* which do 
 not afford any facility of disproof ; where, even admit- 
 ting the truth of the testimony, the supposed pre- 
 sumption of guilt is nothing more than a mistaken 
 conclusion from facts which afford no warrant for the 
 inference of guilt ; in such circumstances, to attempt 
 disproof is to attempt to grapple with a shadow — to 
 require it, to exact an imposs.ibility (^). 
 
 {e) Reg. V. Connor, i Cox, C. C. 233 ; Reg. v. Gree?isladc, 1 1 Cox 
 C. C. 412. 
 
 (/) See Archbold's Criminal Pleading, 22nd ed. p. 3845. 
 
 (o-) Rexv. Looker, pp. 242-244, si^pra ; Rex v. Doivning^ pp. 240- 
 242, supra ; and Rex v. Thornton., pp. 244-249, supra. Most
 
 ^"/S FORCE OF CIRCUMSTANTIAL EVIDENCE 
 
 (3.) The preceding considerations imply the 
 necessity of consistency and general harmony in the 
 testimony of the different witnesses. All human 
 events must necessarily form a coherent whole ; and 
 actual occurrences can never be mutually inconsis- 
 tent.. If one of two witnesses deposes that he saw 
 an individual at London, and the other that he saw 
 him at York at or near the same precise moment, 
 the accounts are absolutely irreconcileable, and one 
 or other of them must by desion or by inadvertence 
 be untrue. A diversity ought always to excite 
 caution and a careful consideration of the capacity, 
 situation, and disposition of the witnesses, and es- 
 pecially of the possibility of confusion from some 
 mental emotion or defect. "We are frequently mis- 
 taken," said Lord Chief Baron Pollock, *' even as to 
 what we may suppose we see ; and still oftener are 
 we mistaken as to that which we suppose we 
 hear " [/i). Lord Clarendon relates that, in the 
 alarm created by the Fire of London, so terrified 
 were men with their own apprehensions, that the 
 inhabitants of a whole street ran away in a great 
 tumult, upon the rumour that the French were march- 
 ing at the other end of it (/). The same historian 
 has given another anecdote relating to that great 
 calamity, too instructive as applicable to this subject 
 to be omitted. A servant of the Portuouese am- 
 
 o 
 
 prisoners, however, must still labour under many difficulties and 
 disadvantages, some of which — such as ignorance and want of means 
 — are practically irremediable. They can only be reduced to a 
 minimum by that ceaseless watchfulness to which every criminal 
 judge should strive to attain. 
 
 (A) In Heg. V. McDuiing and Wife, C. C. C, Oct. 1849. 
 
 {£) Life and Continuation, vol. iii. p. 91 (Oxford ed., 1827).
 
 IN PARTICULAR CASES. 379 
 
 bassador was seized by the populace and pulled 
 about, and very much ill-used, upon the accusation of 
 a substantial citizen, who was ready to take his oath 
 that he saw him put his hand in his pocket, and 
 throw a fire-ball into a house, which immediately 
 burst into flames. The foreigner, who could not 
 speak English, heard these charges interpreted to 
 him with amazement. Being asked what it was 
 that he pulled out of his pocket, and what it was he 
 threw into the house, he answered that he did 
 not think he had put his hand into his pocket, but 
 that he remembered very well that as he walked in 
 the street he saw a piece of bread upon "the ground, 
 which he took up and laid upon a shelf in the next 
 house, according to the custom of his country ; 
 which, observes a learned writer (k), was so strong, 
 that the King of Portugal himself would have acted 
 with the same scrupulous regard to general economy. 
 Upon searching the house, the bread was found just 
 within the door, upon a board as described ; and the 
 house on fire was two doors beyond it, the citizen 
 having erroneously concluded it to be the same; 
 "which," says Lord Clarendon, "was very natural 
 in the fright that all men were in " (/). 
 
 But variations in the relations by different 
 persons of the same transaction or event, in respect 
 of unimportant circumstances, are not necessarily to 
 be regarded as indicative of fraud or falsehood, 
 provided there be substantial agreement in other 
 respects. True strength of mind consists in not 
 
 {k) Wooddeson's Lect. on the Laws of England, vol. iii. p. 299. 
 (/) Life and Continuation, vol. iii. p. 87 (Oxford ed. 1827).
 
 380 FORCE OF CIRCUMSTANTIAL EVIDENCE 
 
 allowing the judgment, when founded upon con- 
 vincing evidence, to be disturbed because there are 
 immaterial discrepancies which cannot be reconciled. 
 When the vast inherent differences in individuals 
 with respect to natural faculties and acquired habits 
 of accurate observation, faithful recollection, and 
 precise narration, and the important influence 
 of intellectual and moral culture, are duly 
 considered, it will not be thought surprising that 
 entire agreement is seldom found amongst a number 
 of witnesses as to all the collateral incidents of the 
 same principal event. Lord Ellenborough said that 
 where there was a general accordance of all material 
 circumstances the credit of the story as a whole was 
 rather confirmed than weakened by minute diversi- 
 ties in the evidence ; that such trivial discrepancies 
 gave it the advantage which belongs to an artless and 
 unartificial tale ; and that minute variances exclude 
 the idea of any uniform contrivance and design in the 
 variation, for where it is an artful and prepared story 
 the parties agree in the minutest facts as well as in 
 the most important (w). " I know not," says Paley, 
 •' a more rash or unphilosophical conduct of the 
 understanding than to reject the substance of a story 
 by reason of some diversity in the circumstances 
 with which it is related. The usual character of 
 human testimony is substantial truth under circum- 
 stantial variety. That is what the daily experience 
 of courts of justice teaches. When accounts of a 
 transaction come from the mouths of different 
 witnesses, it is seldom that it is not possible to pick 
 
 (;;/) Rex v. Lord Cochraiic and ot/iers, 18 14, Shorthand Report by 
 Gurney, p. 456. See p. 99, supra.
 
 IN PARTICULAR CASES. 38 1 
 
 out apparent or real inconsistencies between them. 
 These circumstances are studiously displayed by an 
 adverse pleader, but oftentimes with little impression 
 upon the minds of the Judges. On the contrary, a 
 close and minute agreement induces the suspicion of 
 confederacy and fraud " (h). 
 
 Instances of discrepancy as to the minor attendant 
 circumstances of historical events are numberless. 
 Lord Clarendon relates that the Marquis of Argyle 
 was condemned to be hanged, and that the sentence 
 was performed the same day, Burnet, Woodrow, 
 and Echard, writers of good authority, who lived 
 near the time, state that he was beheaded, though 
 condemned to be hanged, and that the sentence was 
 pronounced on Saturday and carried into effect on 
 the Monday following ({?). Charles II., after his 
 flight from Worcester, has been variously stated to 
 have embarked at Brighthelmstone, and at New 
 Shoreham (/). Clarendon states that the royal 
 standard was erected about six o'clock of the 
 evening of the 25th of August, " a very stormy and 
 tempestuous day " ; whereas other contemporary 
 historians variously state that it was erected on the 
 22nd and the 24th of that month (1^). By some 
 historians the death of the Parliamentary leader 
 Pym is stated to have taken place in the month of 
 
 («) Paley's Ev. P. iii. c. i. See Appendix, p. 424, infra. 
 
 ip) Compare Clarendon's Life and Continuation, vol. ii. p. 266 
 (Oxford ed., 1827), and Paley's Ev. P. iii. c. i. 
 
 {p) 6 Hist, of Reb. 541 ; Lingard's Hist, of Eng. vol. xi. c. L 
 p. 98. 
 
 (jj) 3 Hist, of Reb. 190 ; Rushworth's Collection, part iii. vol. L 
 p. 783 (4th volume) ; Ludlow's Memoirs, p. 17.
 
 382 FORCE OF CIRCUMSTANTIAL EVIDENCE 
 
 May, 1643 (r); while by others it is said to have 
 occurred in the following year. To come nearer 
 to our own times, the author of a celebrated bio- 
 graphical memoir relates that, after the Rebellion 
 of 1745, three lords were executed at Tower-hill; 
 whereas it is well known that two only underwent 
 that doom, the third, Lord Nithsdale, having 
 by the devotion of his wife effected his escape 
 the night before his intended execution (5). It is 
 remarkable that contemporary and early writers 
 have stated the lady in question to have been his 
 mother. Such discrepancies never excite a serious 
 doubt as to the truth of the principal facts with 
 which they are connected, unless they can be traced 
 to the operation of prejudice or some other sinister 
 motive (/). 
 
 Still less are mere omissions to be considered as 
 necessarily casting discredit upon testimony which 
 stands in other respects unimpeached and unsus- 
 pected. Omissions are generally capable of ex- 
 planation by the consideration that the mind may 
 be so deeply impressed with, and the attention so 
 riveted to, a particular fact, as to withdraw attention 
 
 (r) Whitelock's Memorials, 69 ; 4 Hist, of Reb. 436 ; 7 Hume's 
 Hist. 540, ed. i8i8 ; Godwin's Hist, of the Commonwealth, vol. i. p. 16 
 and footnote. 
 
 (s) Coxe's Mem. of Walpole, vol. i. p. 73. 
 
 (/) See in 4 Clarendon's Hist. 436, a remarkable instance 01 
 historical dishonesty. He states that Pym died of a loathsome disease, 
 morbus pediciilosiis^ evidently with the design of propagating the 
 notion that it was " a mark of divine vengeance " (7 Hume's Hist. 540) ; 
 whereas he must have known that his corpse was exposed to public 
 view for several days before it was interred, in confutation of this 
 calumnious statement. (Ludlow's Memoirs, p. 35.)
 
 IN PARTICULAR CASES. 383 
 
 from concomitant circumstances, or prevent It from 
 taking note of what is passing. It has been justly 
 remarked that, "upon general principles, affirmative 
 is better than negative evidence. A person de- 
 posing to a fact, which he states he saw, must either 
 speak truly, or must have invented his story, or it 
 must have been sheer delusion. Not so with neofa- 
 tive evidence ; a fact may have taken place in the 
 very sight of a person who may not have observed 
 it ; and if he did observe it, may have forgotten it " 
 (?/). The phenomenon called the Northern Lights 
 not recorded to have been seen in the British is 
 Islands before the commencement of the last cen- 
 tury (,r). Negative evidence is therefore regarded 
 as of little or no weight when opposed to affirmative 
 evidence of credible persons. Sometimes, however, 
 the non-relation of particular facts amounts to the 
 suppressio veri, which in point of moral guilt may 
 be equal to positive mendacity, and destructive of 
 all claim to credit {y). 
 
 Section 3. 
 
 cases in illustration of the force of 
 circumstantial evidence. 
 
 Many remarkable cases of this nature have been 
 given in the preceding pages, in exemplification of 
 
 {u) Sir Herbert Jenner, in Chambers v. The Queen' s Proctor^ 2 Curt, 
 at p. 434. 
 
 {x) Whately's Introd. Less, on Christ. Ev. 45. 
 
 (j) Grafton, who was printer to Queen Ehzabeth, in his Chronicles, 
 pubHshed in 1562, in writing the history of King John, has made no 
 mention of Magna Charta ; perhaps he considered that his silence 
 might be deemed complimentary to that arbitrary princess.
 
 384 FORCE OF CIRCUMSTANTIAL EVIDENCE. 
 
 some specific doctrine or object ; to these will now 
 be added, as an appropriate commentary upon the 
 discussion of the scientific principles governing the 
 reception and estimate of circumstantial evidence, 
 some striking examples of the force of a cumulation 
 of moral and mechanical facts. 
 
 (t.) In the autumn of 1786 a young woman, who 
 lived with her parents in a remote district in Kirk- 
 cudbright, was one day left alone in the cottage, 
 her parents having gone out to the harvest field. 
 On their return home, a little after mid-day, they 
 found their daughter murdered, with her throat 
 cut in a shocking manner. The circumstances in 
 which she was found, the character of the deceased, 
 and the appearance of the wound, all concurred in 
 excluding any presumption of suicide ; while the 
 surgeons who examined the wound were satisfied 
 that it had been inflicted by a sharp instrument, 
 and by a person who must have held the instru- 
 ment in his left hand. Upon the body being 
 opened it appeared that the girl was some months 
 gone with child ; and on examination of the ground 
 about the cottage, footsteps were discovered of a 
 person who had seemingly been running hastily 
 from the cottage, by an indirect road through a 
 quagmire or bog in which there were stepping- 
 stones. It appeared, however, that the person, in 
 his haste and confusion, had slipped his foot and 
 stepped into the mire, by which he must have been 
 wet nearly to the middle of the leg. The prints of 
 the footsteps were accurately measured, and an 
 exact impression taken of them ; they appeared
 
 CASES IN ILLUSTRATION. 385 
 
 to be those of a person who must have worn 
 shoes the soles of which had iron knobs or nails 
 in them — a circumstance common in that part of 
 the country — and had been newly mended. Along 
 the track of the footsteps, and at certain intervals, 
 drops of blood were discovered ; and on a stile or 
 small gateway, near the cottage and in the line of 
 the footsteps, some marks resembling those of a 
 hand which had been bloody. Not the slightest 
 suspicion at this time attached to any particular 
 person, nor was it even suspected who might be the 
 father of the child of which the girl was pregnant. 
 
 At the funeral a number of persons of both 
 sexes attended, and the Stewart- depute thought 
 it the fittest opportunity of discovering if possible 
 the murderer ; conceiving rightly that, to avoid 
 suspicion, whoever he was, he would not on that 
 occasion be absent. With this view he called 
 together after the interment the whole of the men 
 who were present, being about sixty in number. 
 He caused the shoes of each of them to be taken off 
 and measured ; and one of the shoes was found to 
 resemble, pretty nearly, the impression of the foot- 
 steps near to the cottage. The wearer of the shoe 
 was the schoolmaster of the parish ; which led to a 
 suspicion that he must have been the father of the 
 child, and had been guilty of the murder to save his 
 character. On a closer examination, however, the 
 shoe proved to be pointed at the toe, whereas the 
 impression of the footstep was round at that part. 
 The measurement of the rest went on, and after 
 nearly the whole number had been gone through 
 one shoe at length was found which corresponded 
 
 C.E. C C
 
 386 FORCE OF CIRCUMSTANTIAL EVIDENCE. 
 
 exactly with the impression in dimensions, shape 
 of the foot, form of the sole, and the number and 
 position of the nails. 
 
 William Richardson, the young" man to whom the 
 shoe belonged, on being asked where he was the 
 day the deceased was murdered, replied, seemingly 
 without embarrassment, that he had been all that 
 day employed at his master's work, a statement 
 which his master and fellow-servants, who were 
 present, confirmed. This confirmation so far re- 
 laxed suspicion that a warrant of commitment was 
 not then granted ; but some circumstances occur- 
 ring a few days afterwards having a tendency to 
 excite it anew, the young man was apprehended 
 and lodged in gaol. Upon his examination he 
 acknowledged that he was left-handed ; and some 
 scratches being observed on his cheek, he said he 
 had got them when pulling nuts in a wood a few 
 days before. He still adhered to what he had said 
 of his having been on the day of the murder em- 
 ployed constantly at his master's work, at some dis- 
 tance from the place where the deceased resided ; 
 but in the course of the inquiry it turned out that 
 he had been absent from his work about half an 
 hour (the time being distinctly ascertained) in the 
 course of the forenoon of that day ; that he called at 
 a smith's shop, under the pretence of wanting some- 
 thing, which it did not appear he had any occasion 
 for ; and that this smith's shop was in the way to 
 the cottage of the deceased. A young girl, who 
 was some hundred yards from the cottage, said that 
 about the time the murder was committed (which 
 corresponded with the time that Richardson was
 
 CASES IN ILLUSTRATION. 387 
 
 absent from his fellow-servants) she saw a person 
 exactly like him in dress and appearance running 
 hastily toward the cottage, but did not see him 
 return, though he might have gone round by a 
 small eminence which would intercept him from her 
 view, and which was the very track where the foot- 
 steps had been traced. 
 
 His fellow-servants now recollected that in the fore- 
 noon of that day they were employed with Richard- 
 son in driving their master's carts ; and that when 
 passing by a wood, which they named, he said that he 
 must run to the smith's shop and would be back in a 
 short time. He then left his cart under their charo-e ; 
 they waited for him about half an hour (which one of 
 the servants ascertained by having at the time looked 
 at his watch), and remarked on his return that he had 
 been longer absent than he said he would be, to 
 which he replied that he stopped in the wood to 
 gather some nuts. They observed at this time one 
 of his stockings wet and soiled, as if he had stepped 
 into a puddle ; on which they asked where he had 
 been. He said he had stepped into a marsh, the 
 name of which he mentioned ; on which his fellow- 
 servants remarked, " that he must have been either 
 mad or drunk if he had stepped into that marsh, as 
 there was a footpath which went along the side of 
 it." It then appeared, by comparing the time he 
 was absent with the distance of the cottage from 
 the place where he had left his fellow-servants, that 
 he might have gone there, committed the murder, 
 and returned to them. A search was then made 
 for the stockings he had worn that day, which were 
 found concealed in the thatch of the apartment 
 
 c c 2
 
 2,SS FORCE OF CIRCUMSTANTIAL EVIDENCE. 
 
 where he slept, and appeared to be much soiled, 
 and to have some drops of blood on them. He 
 accounted for the blood by saying, first, that his 
 nose had been bleeding some days before ; but it 
 beincr observed that he had worn other stockintrs 
 
 o r? 
 
 on that day, he said he had assisted in bleeding a 
 horse ; it was proved, however, that he had not 
 done so, but had stood at such a distance that the 
 blood could not have reached him. On examininof 
 the mud or sand upon the stockings, it was found 
 to correspond precisely with that of the mire or 
 puddle adjoining to the cottage, which was of a very 
 particular kind, none other of the same kind being 
 found in that neighbourhood. It then came out that 
 Richardson had been acquainted with the deceased, 
 who was considered in the county as of weak in- 
 tellect, and had on one occasion been seen with her 
 in a wood, in circumstances that led to a suspicion 
 that he had had improper intercourse with her ; and 
 on being taunted with having such connection with 
 one of her condition, he seemed much ashamed and 
 greatly hurt. 
 
 It was proved by the person who sat next to 
 him when his shoes were being measured, that 
 he trembled, and seemed much agitated ; and 
 that in the interval between that time and his 
 being apprehended he had been advised to t\y, 
 but his answer was, "Where can I fly to .-^ " On 
 the other hand, evidence was brought to show 
 that, about the time of the murder, a boat's crew 
 from Ireland had landed on that part of the coast, 
 near to the dwelling of the deceased ; and it was 
 said that some of the crew might have committed
 
 CASES IN ILLUSTRATION. 389 
 
 the murder, though their motives for doing so it 
 was difficult to explain, it not being alleged that 
 robbery was their purpose, or that anything was 
 missing from the cottages in the neighbourhood. 
 
 The prisoner was tried at Dumfries, in the spring 
 of 1787, and the jury by a great plurality of voices 
 found him guilty. Before his execution he con- 
 fessed that he was the murderer ; and said it was 
 to hide his shame that he committed the deed, 
 knowing that the girl was with child by him. He 
 mentioned also to the clergyman who attended him, 
 where the knife would be found with which he had 
 perpetrated the murder ; and it was found accord- 
 ingly in the place he described, under a stone in a 
 wall, with marks of blood upon it {2). 
 
 The casual discovery of circumstances which 
 indicated the existence of a powerful motive to 
 commit the deed — the facts, that it had been com- 
 mitted by a left-handed man, as the prisoner was 
 (a circumstance which narrowed the range of in- 
 quiry) and that there was an interval of absence 
 which afforded the prisoner the necessary oppor- 
 tunity of committing the crime ; his false assertion 
 that he had not been absent from his work on that 
 day (contradicted as it was by witnesses who saw 
 him on the way to and in the vicinity of the scene 
 of the murder) amounting to an admission of the 
 relevancy and weight of that circumstance if uncon- 
 
 (z) Rex V. Richardson, Burnett's Criminal Law of Scotland, p. 524. 
 This case is also concisely stated in Lockhart's Memoirs of the Life of 
 Sir Walter Scott (iv, 52, 2nd ed. 1S39); and it supplied one of the 
 most striking incidents in " Guy Mannering."
 
 390 FORCE OF CIRCUMSTANTIAL EVIDENCE. 
 
 tradicted ; the discovery of his footsteps near the 
 spot ; his agitation at the time of the measure- 
 ment and comparison of his shoes with the impres- 
 sions ; the discovery of his secreted stockings, 
 spotted with blood, and soiled with mire peculiar 
 to the vicinity of the cottage ; the scratches on 
 his face ; his various untrue statements — all these 
 particulars combine to render this a most satisfactory 
 case of conviction, and to exemplify the high degree 
 of assurance which circumstantial evidence is capable 
 of producing. 
 
 (2.) A man named Patch was tried for the 
 murder of Mr. Isaac Blight, a ship-breaker, near 
 Greenland Dock, Mr. Blight had taken the 
 prisoner into his service in the year 1803. In July 
 1805, having become embarrassed in his circum- 
 stances he entered Into a deed of composition with 
 his creditors ; and in consequence of the failure of 
 this arrangement made a colourable transfer of 
 his property to the prisoner. It was afterwards 
 agreed between them, that Mr. Blight was to retire 
 nominally from the business, which the prisoner was 
 to manage ; Blight was to have two-thirds of the 
 profits, and the prisoner the remaining third, for 
 which he was to pay ^1,250. Of this amount, ^250 
 was paid in cash, and a draft, upon a person 
 named Goom, was given for the remainder, which 
 would become payable on the 1 6th of September ; 
 the prisoner representing that he had received 
 the purchase-money of an estate and lent it to Goom. 
 On the 1 6th of September the prisoner represented 
 to Mr- Blight's bankers that Goom could not take
 
 CASES IN ILLUSTRATION. 39 1 
 
 up the bill, and withdrew it, substituting his own 
 draft upon Goom, to fall due on the 20th of 
 September. 
 
 On the 19th of September Mr. Blight went 
 to visit his wife at Margate, and the prisoner ac- 
 companied him as far as Deptford, and then went 
 to London, and represented to the bankers that 
 Goom would not be able to face his draft, but that 
 he had obtained from him a note which satisfied 
 him, wherefore they were not to present it. The 
 prisoner boarded in Mr. Blight's house, and the only 
 other inmate was a female servant, whom, about 
 eight o'clock on the same evening (the 19th), he 
 sent out to procure some oysters for his supper. 
 During her absence a gun or pistol ball was fired 
 through the shutter of a parlour fronting a wharf 
 beside the Thames, where the family, when at home, 
 usually spent their evenings. It was low water, 
 and the mud was so deep that any person attempt- 
 ing to escape in that direction must have been 
 suffocated ; and a man who was standing near the 
 gate of the wharf, which was the only other mode of 
 escape, heard the report, but saw no person. From 
 the manner in which the ball had entered the 
 shutter, it must have been discharged by some 
 person who was close to the shutter ; and the river 
 was so much below the level of the house, that the 
 ball, if it had been fired from thence, must have 
 reached a much higher part than that which it 
 struck. The prisoner declined the offer of the neigh- 
 bours to remain in the house with him that night. 
 On the following day he wrote to inform Mr. Blight 
 of this transaction, stating his hope that the shot had
 
 392 FORCE OF CIRCUMSTANTIAL EVIDENCE. 
 
 been accidental, that he knew of no person who had 
 any animosity against him, that he wished to know 
 for whom it was intended, and that he should be 
 ha[)py to hear from him, but much more so to see him. 
 Mr. Blight returned home on the 23rd of Septem- 
 ber, having previously been to London to see his 
 bankers on the subject of the ^1,000 draft. Upon 
 eettinof home, the draft became the subject of con- 
 versation, and Mr. Blight desired the prisoner to go to 
 London and not to return without the money. Upon 
 his return from London the prisoner and Mr. 
 Blight spent the evening in the back parlour, a 
 different one from that in which the family usually 
 sat. About eight o'clock the prisoner went from the 
 parlour into the kitchen, and asked the servant for a 
 candle, complaining that he was disordered. The 
 prisoner's way from the kitchen was through an 
 outer door which fastened by a spring lock, and 
 across a paved court in front of the house, which 
 was enclosed by palisades, and through a gate over 
 a wharf, in front of that court, on which there was the 
 kind of soil peculiar to premises for breaking up ships, 
 and then through a counting-house. All of these 
 doors, as well as the door of the parlour, the prisoner 
 left open, notwithstanding the state of alarm excited 
 by the shot. The servant heard the privy-door slam, 
 and almost at the same moment saw the flash of a 
 pistol at the door of the parlour where the deceased 
 was sitting, upon which she ran and shut the outer 
 door and gate. The prisoner immediately after- 
 wards rapped loudly at the door for admittance, 
 with his clothes in disorder. He evinced great 
 apparent concern for Mr. Blight, who was mortally
 
 CASES IN ILLUSTRATION. 393 
 
 wounded and died on the following day. From the 
 state of the tide, and from the testimony of various 
 persons who were on the outside of the premises, no 
 person could have escaped from them. 
 
 In consequence of this event Mrs. Blight returned 
 home, and the prisoner, in answer to an inquiry about 
 the draft which had made her husband so uneasy, told 
 her that it was paid, and claimed the whole of the 
 property as his own. Suspicion soon fell upon the 
 prisoner, and in his sleeping-room was found a pair 
 of stockings rolled up like clean stockings, but with 
 the feet plastered over with the sort of soil found 
 on the wharf, and a ramrod was found in the privy. 
 The prisoner usually wore boots, but on the even- 
 ing of the murder he wore shoes and stockings. It 
 was supposed that, to prevent alarm to the deceased 
 or the female servant, the murderer must have 
 approached without his shoes, and afterwards gone 
 on the wharf to throw away the pistol into the 
 river. All the prisoner's statements as to his 
 pecuniary transactions with Goom and his right to 
 draw upon him, and the payment of the bill, turned 
 out to be false. He attempted to tamper with the 
 servant-girl as to her evidence before the coroner, 
 and urged her to keep to one account ; and before 
 that officer he made several inconsistent statements 
 as to his pecuniary transactions with the deceased, 
 and equivocated much as to whether he wore boots 
 or shoes on the evening of the murder, as well as 
 to his ownership of the soiled stockings, which how- 
 ever were clearly proved to be his, and for the soiled 
 state of which he made no attempt to account. The 
 prisoner suggested the existence of malicious feelings
 
 394 FORCE OF CIRCUMSTANTIAL EVIDENCE. 
 
 in two persons with whom the deceased had been 
 on ill terms ; but they had no motive for doing him 
 any injury, and it was clearly proved that upon 
 both occasions of attack they were at a distance. 
 
 The prisoner's motive was to possess himself of 
 the business and property of his benefactor ; and to 
 all appearance his falsehoods and duplicity were on 
 the point of being discovered. His apparent incau- 
 tion on the evening of the murder could be ac- 
 counted for after the preceding alarm by no other 
 supposition than that it was the result of premedita- 
 tion, and intended to afford facilities for the execu- 
 tion of his dark purposes. The direction of the 
 first ball through the shutter excluded the possi- 
 bility that it had been fired from any other place 
 than the deceased's own premises ; and by a 
 singular concurrence of circumstances, it was clearly 
 proved that no person escaped from the premises 
 after either of the shots, so that suspicion was 
 necessarily restricted to the persons on the premises. 
 The occurrence of the first attack during the tem- 
 porary absence of the servant (that absence con- 
 trived by the prisoner himself) ; the discovery of a 
 ramrod in the very place where the prisoner had 
 been, and of his soiled stockings folded up so as to 
 evade observation ; his interference with one of the 
 witnesses ; his falsehoods respecting his pecuniary 
 transactions with Goom and with the deceased ; 
 and his attempts to exonerate himself from suspicion 
 by implicating other persons — all these cogent cir- 
 cumstances of presumption tended to show not 
 only that the prisoner was the only person who had 
 any motive to destroy the deceased, but that the
 
 CASES IN ILLUSTRATION. 395 
 
 crime could have been committed by no other per- 
 son ; and while all the facts were naturally expli- 
 cable upon the hypothesis of his guilt, they were 
 incapable of any other reasonable solution. The 
 prisoner was convicted and executed [a). 
 
 (3.) A respectable farmer, who had been at Stour- 
 bridge market on the i8th of December, 181 2, left 
 that place on foot a little after four in the afternoon, 
 to return home, a distance of between two and 
 three miles. About half a mile from his own 
 house he was overtaken by a man who inquired 
 the road for Kidderminster ; and they walked 
 together for two or three hundred yards, when the 
 stranger drew behind and shot him in the back, and 
 then robbed him of about eleven pounds in money 
 and a silver watch. After lingering ten days, he 
 died of the wound thus received. The wounded 
 man noticed that the pistol was long and very 
 bright, and that the robber had on a dark-coloured 
 great-coat, which reached down to the calves of his 
 legs. Several circumstances of correspondence with 
 the description given by the deceased conspired to 
 fix suspicion upon the prisoner who for about four- 
 teen months had worked as a carpenter at 
 Ombersley, seventeen miles from Stourbridge. It 
 was discovered that he had been absent from that 
 place from the 17th to the 22nd of December ; that 
 on the 23rd he had taken two boxes, one contain- 
 ing his working tools and the other his clothes, to 
 Worcester, and there delivered them to a carrier, 
 
 (a) Surrey Spring Ass. 1806, coram Macdonald, L.C.B. Shorthand 
 Report by Gurney.
 
 396 FORCE OF CIRCUMSTANTIAL EVIDENCE. 
 
 addressed to John Wood, at an inn in London, to 
 be left till called for, the name by which he was 
 known being William Howe ; and that on the 25th 
 he finally left Ombersley, and went to London. 
 Upon inquiry at the inn to which the boxes were 
 directed, it was found that a person answering the 
 description of the prisoner had removed them in a 
 mealman's cart to the Bull in Bishopsgate Street, 
 and that on the 5th of January they had been re- 
 moved from thence in a cooper's cart. Here all 
 trace of the boxes seemed cut off; but on the 12th 
 of January the police officers succeeded in tracing 
 them to a widow woman's house, in a court in the 
 same street ; when, upon examining the box which 
 contained the prisoner's clothes, they found a screw- 
 barrel pistol, a pistol-key, a bullet-mould, a single 
 bullet, a small quantity of gunp(ywder in a cartridge 
 and a fawn-skin waistcoat ; which latter circum- 
 stance was important, as the prisoner was seen in 
 Stourbridge on the day of the murder, dressed in a 
 waistcoat of that kind. By remaining concealed in 
 the woman's house the police were enabled to 
 apprehend the prisoner, who called there the follow- 
 ing night. 
 
 Upon his apprehension, he denied that he 
 had ever been at Stourbridge, or heard of the 
 deceased being shot ; and he accounted for chang- 
 ing his name at Worcester by stating, first, that he 
 had had a difference with his fellow work-people, 
 and afterwards that he did it to prevent his wife, 
 whom he had determined to leave, from beini^ able 
 to follow him. On beingr asked where he was on 
 the 1 8th of December, he said he believed at
 
 CASES IN ILLUSTRATION. 397 
 
 Kidderminster, a town about six miles from Stour- 
 bridge. Upon the prisoner's subsequent examina- 
 tion before the magistrates, he stated that he was 
 at Kidderminster on the 17th of December, and at 
 Stourbridge on the i8th (the day of the murder), 
 but that he was not out of the latter town from the 
 time of his arrival there, at one o'clock in the after- 
 noon until half-past seven the following morning; 
 that in the afternoon he went to look about the 
 town for lodgings, and ultimately went to his 
 lodgings about six o'clock in the evening. The 
 account which the prisoner thus gave of himself 
 was proved to be a tissue of falsehoods. lie had 
 been seen by several witnesses between four and 
 five in the afternoon of the day in question, on the 
 road leading from Stourbridge toward, and not far 
 from, the spot where the deceased was shot, and 
 about half-past five he was seen going in great 
 haste in the opposite direction, toward Stourbridge. 
 He afterwards called at two public-houses at Stour- 
 bridge — at the first of them about six o'clock, and 
 at the other about nine the same evening ; at both 
 of which the attack and robbery were the subjects 
 of conversation, in which the prisoner joined ; and 
 he was distinctly spoken to as having worn a fawn- 
 skin waistcoat. On the 21st of December the 
 prisoner sold at Warwick a watch of which the 
 deceased had been robbed, stating it to be a family 
 watch. A letter was sent by the prisoner while in 
 gaol to his wife : she being unable to read, had 
 got a neighbour to read it to her. It contained 
 a direction to remove some thinors concealed in a 
 rick near Stourbridge ; where, upon search being
 
 398 FORCE OF CIRCUMSTANTIAL EVIDENCE. 
 
 made, were discovered a glove, containing three 
 bullets, and a screw-barrel pistol, the fellow to that 
 found in the prisoner's box. A gunmaker deposed 
 that the bullet extracted from the wound had been 
 discharged from a screw-barrel pistol, such as that 
 produced, and that that bullet and the bullet found in 
 the prisoner's box had been cast in the same mould. 
 The prisoner's denial, on his apprehension, that 
 he had ever been at Stourbridge, or heard of the 
 act, denoted a consciousness of the fatal effect of 
 any evidence tending to establish the fact of his 
 presence there. The discovery of a fawn-skin 
 waistcoat in his possession, corresponding with that 
 worn by him when seen at Stourbridge on the 
 evening of the murder ; his possession and dis- 
 posal of the deceased's watch within three days after 
 the robbery ; his false statement that it was a family 
 watch ; the correspondence between the weapon 
 found in the rick and that found in the prisoner's 
 box, and between the bullet extracted from the 
 wound and that found in the same box, and the 
 peculiarity that the deceased had been killed by a 
 wound from a screw-barrelled pistol — all these cir- 
 cumstances placed the guilt of the prisoner beyond 
 any reasonable doubt, and there was no possibility 
 of referring them to casual and accidental coinci- 
 dence, or of explaining them upon any hypothesis 
 compatible with his innocence. He was convicted, 
 and before his execution confessed his guilt {p). 
 
 (4.) A foreigner, named Courvoisier, was tried at 
 the Central Criminal Court (June 1840) for the 
 
 {b) Rex\. William Howe^ Stafford Spring Ass. iSi^,cora;/i Bay ley, J,
 
 CASES IN ILLUSTRATION. 399 
 
 murder of Lord William Russell, an elderly man, 
 seventy-five years of age, a widower, who lived 
 in Norfolk Street, Park Lane. The deceased's house- 
 hold consisted of the prisoner, who had been in his 
 service as valet about five weeks, and of a house- 
 maid and cook who had lived with him three years, 
 besides a coachman and groom who did not live in 
 the house. On the 6th of May the female servants 
 went to bed as usual, and the housemaid on going 
 to bed lighted a fire and set a rush-licrht in her 
 master's bedroom, which presented its usual appear- 
 ance ; the prisoner remained sitting up to warm his 
 bed. The housemaid rose about half-past six on 
 the following morning, and on going downstairs 
 knocked, as usual, at the prisoner's door. At her 
 master's door she noticed the warming-pan, which 
 was usually taken downstairs ; on going into a back 
 drawinof-room she found the drawers of her master's 
 desk open and his bunch of keys lying on the carpet ; 
 a screw-driver lay on a chair. In the hall his Lord- 
 ship's cloak was found neatly folded up, together 
 with a bundle, containing a variety of valuable 
 articles, most of them portable, such as a thief 
 would ordinarily put in his pocket instead of de- 
 liberately packing up. In the dining-room she 
 found several articles of plate scattered about. The 
 street-door, though shut, was unfastened, but the 
 testimony of the police who passed the house many 
 times in the night rendered it very unlikely that 
 any person had left it in that direction. 
 
 Alarmed by these appearances, the housemaid 
 called the prisoner, and found him dressed, though 
 only a few minutes had elapsed since she had
 
 400 FORCE OF CIRCUMSTANTIAL EVIDENCE. 
 
 knocked at his door — a much shorter time than he 
 usually took to dress. They went together down- 
 stairs ; and after examining the state of the dining- 
 room and the prisoner's pantry, where the cupboard 
 and drawers were all found opened, they proceeded 
 to their master's bed-room, where he was found 
 with his throat cut, in a manner which must have 
 produced instant death. His Lordship usually 
 placed his watch and rings on his dressing-- table ; 
 but they had been taken away, and his note-cases, 
 in one of which the prisoner stated that he had seen 
 a ;^io and a ^5 note a few days before, were open 
 and emptied of their contents. A book was found 
 on the floor, and his Lordship's spectacles lay upon 
 it, and there was a candlestick about four or five 
 feet from the bed, with the candle burned to the 
 socket. These articles appeared to have been so 
 placed to create the impression that his Lordship 
 had been murdered while reading ; but he was not 
 accustomed to read in bed, and only so much of the 
 rush-light was burned as would have been consumed 
 in about an hour and a half, thouo^h the candle was 
 completely burned away. The prisoner stated that 
 he left his master reading. Upon the door of the 
 prisoner's pantry, leading to a back area, were 
 marks as if it had been broken into, and the 
 prisoner suggested that the thieves had entered by 
 that door ; but the marks appeared to have been 
 made from within, and none of them had been made 
 by the application of sufficient force to break open 
 the door ; the bolts appeared not to have been shot 
 at the time, and the socket of one of them had been 
 wrenched off when the door was open. The marks
 
 CASES IN ILLUSTRATION. 4OI 
 
 on this door appeared to have been made with a 
 bent poker found in the pantry. It was clear that 
 no person had entered the premises from the rear, 
 since, in one direction, they could have been ap- 
 proached only by passing over a wall covered with 
 dust, which would have retained the slightest im- 
 pression ; and in the other, anyone must have passed 
 over some tiling which was so old and perished as 
 necessarily to have been damaged by the passing 
 of any person over it ; while from the testimony of 
 the police it was equally clear that no person had 
 escaped through the front door. 
 
 For several days the missing articles could not 
 be found, and the case appeared to be wrapped in 
 impenetrable mystery ; but at length, upon a stricter 
 search, his Lordship's rings and Waterloo medal, 
 five sovereigns, and a ;^io note, the latter of which 
 had been removed from his note-case, were found 
 concealed behind the skirting-board in the prisoner's 
 pantry ; and beneath the leaden covering of a sink 
 was found his Lordship's watch, and several other 
 articles were also found in other parts of the same 
 room. But a quantity of plate which had been 
 stolen still remained undiscovered, notwithstanding 
 the most diligent efforts to discover it ; and its non- 
 production was the only circumstance which gave 
 any apparent countenance to the possibility that the 
 house had been robbed on the night of the murder, 
 by parties who had escaped. The mystery was 
 cleared up however in a remarkable manner, during 
 the progress of the trial. About a fortnight before 
 the murder, the prisoner had left a parcel in the care 
 of an hotel-keeper with whom he had formerly lived 
 
 C.E. D D
 
 402 FORCE OF CIRCUMSTANTIAL EVIDENCE. 
 
 as waiter, whose curiosity was aroused by reading in 
 a newspaper a suggestion that, as the prisoner was 
 a foreigner, he had probably left the plate at one of 
 the foreign hotels in London. He communicated 
 with the police, and the parcel was o})ened and found 
 to contain the missing plate. The prisoner had been 
 known in this situation only by his Christian name ; 
 this circumstance accounted for the fact that sus- 
 picion had not been sooner excited by the narrative 
 ofthemurder and robbery which had appeared in the 
 daily journals. This discov^ery, in conjunction with 
 the simulated appearances of external violence and 
 robbery, and the conclusive evidence that the 
 premises had not been entered from without, made 
 it certain that the robbery of the plate and the 
 murder had been committed by one of the inmates ; 
 while the manner and place of concealment, and 
 the artless and satisfactory account given by the 
 female servants, rendered it equally clear that the 
 prisoner and he alone could have been the murderer. 
 He made a confession of his guilt, and was exe- 
 cuted pursuant to his sentence {d). 
 
 (5.) Perhaps one of the most extraordinary civil 
 causes, in which the truth has been made manifest by 
 the force of circumstantial evidence, was " The Great 
 Matlock Will Case " (e), tried before Lord Chief 
 Justice Cockburn in February 1864. The history of 
 the litigation is somev.^hat remarkable. It related to 
 the validity of three codicils to a will of one George 
 
 (d) Sessions Papers, 1840 ; 2 Townsend's Modern State Trials, 244. 
 
 (e) Cresswell a?id others v. Jncksoti and another ; contemporaneous 
 report published in 1864, Derby, Richard Keene. The Editor of 
 the present volume was one of the counsel in the case.
 
 CASES IN ILLUSTRATION. 403 
 
 Nuttall, and a suit was instituted in Chancery to 
 establish them. An issue was directed by the Master 
 of the Rolls (y), in which the plaintiffs asserted and 
 the defendants denied that the codicils were genuine. 
 It came on for trial in the first instance before Lord 
 Chief Justice Erie, at the Derby summer assizes in 
 1859, when the jury pronounced in favour of the 
 codicils. Not being satisfied with the verdict, the 
 Master of the Rolls directed a second trial, which 
 took place before Lord Chief Baron Pollock, at the 
 Derby spring assizes i860, when the jury found 
 against the codicils. The Master of the Rolls was 
 satisfied with this verdict, and refused a new trial. 
 Application was made to the Lords Justices, who 
 were divided in opinion. Lord Justice Turner being 
 in favour of, and Lord Justice Knight Bruce against, 
 granting a new trial. The plaintiffs appealed to 
 the House of Lords. The case was heard by three 
 of the Law Lords. The Lord Chancellor (Lord 
 Cranworth) and Lord Wensleydale were of opinion 
 that a third trial was desirable, Lord Chelmsford 
 was of the contrary opinion. Accordingly, the 
 application for a new trial was granted, and the 
 trial was ordered to take place before the Lord Chief 
 Justice of England (Sir Alexander Cockburn) and 
 a special jury of the City of London. The case was 
 begun on the 2 2 nd of February 1 864, and lasted eight 
 days. It resulted in a verdict— not afterwards dis- 
 turbed, although a motion was again made for a new 
 trial — for the df^fendants. 
 
 The testator, George Nuttall, lived and died a 
 bachelor at Matlock, and was possessed of real 
 
 (/) Sir John Romilly. 
 
 D D 2
 
 404 FORCE OF CIRCUMSTANTIAL EVIDENCE. 
 
 and personal estate worth in the aggregate some- 
 where about ^60,000. He was a land surveyor, 
 and had been in good practice, and though not of 
 scholarly education, was very intelligent, widely 
 self-instructed and an excellent man of business. 
 He lived a somewhat secluded life, and had no near 
 or intimate relations. The only person besides 
 himself who lived in the house was Catherine 
 Marsden his housekeeper. Her sister was the wife 
 of John Else, who as the person chiefly benefiting 
 by the codicils figures largely in this story. Else 
 also lived at Matlock, and was assistant-overseer and 
 County Court bailiff there. He was in a great 
 measure brought up by the testator, and from boy- 
 hood had been employed to do writing and copying 
 for him. The testator had two styles of handwrit- 
 ing, a free and running hand, like that of an edu- 
 cated man, and a more formal and clerk-like hand. 
 Else's writing so closely resembled Mr. Nuttall's 
 more formal hand that persons who were in the 
 habit of corresponding upon business matters with 
 Mr. Nuttall were often unable to tell whether he or 
 Else had written the body of a letter. 
 
 The testator died on the 7th of March 1856. His 
 will had been drafted by his attorney, Mr. Newbold, 
 and had been copied out by his own hand in dupli- 
 cate. Immediately after his death, one of these holo- 
 graph copies was found in a cupboard in his room. 
 It was dated 15th September 1 854, and under it John 
 Nuttall, a distant cousin of the testator, took the 
 bulk of the real estate, and was residuary legatee of 
 the personalty. Amongst many gifts was one to 
 Catherine Marsden of the house for life, of the
 
 CASES IN ILLUSTRATION. 405 
 
 furniture, and of £200 a year. To Else was left 
 tithe property, which, after making allowance for 
 certain charges, amounted to about ^140 a year. On 
 the day of the funeral a further search was made in 
 the cupboard, whereupon a second holograph copy 
 of the will was found in a packet sealed and marked 
 " This is my rigt [sic] will." This duplicate bore the 
 same date as the will first found, and was similar to 
 it in every particular, except that the duplicate had 
 an interlineation by which Else was to have a charge 
 of ^100 per annum, and Catherine Marsden a 
 charge of ^50 per annum, upon some property 
 ofiven to another lecfatee. This interlineation was 
 the first of the imputed forgeries, and became a 
 very important factor in the case. It was, however, 
 inoperative in itself, inasmuch as it was not initialled 
 by the attesting witnesses nor noticed in the attesta- 
 tion clause. 
 
 In April 1856 Mr. Newbold asked John Else for 
 a voucher for some account which had been paid. 
 A mass of the testator's papers had been conveyed to 
 Else's house ; amongst them, search being made 
 for the voucher, Else asserted that he found 
 the first codicil dated the 27th of October 1855. 
 It was gummed up in an envelope which contained, 
 besides the codicil, an epitome, upon half a sheet of 
 note-paper, of the will and first codicil. The epitome, 
 so far as it related to the will, was undoubtedly 
 genuine. So also was an erasure of a devise to S. H. 
 (Sarah Holmes) who had died in February 1855. 
 The rest, relating to the first codicil, was alleged to 
 be a forgery. The effect of this codicil was to 
 revoke a devise in the will, and to give property
 
 406 FORCE OF CIRCUMSTANTIAL EVIDENCE. 
 
 worth about /^550 a year to Else, subject to four 
 annuities of /"20 each to four brothers of Catherine 
 Marsden. An annuity of /50 a year was given to 
 Mr. Ncwbold ; there was also a devise to a son of 
 Mr. Ncwbold of the property which under the will 
 was left to Sarah Holmes, and further dispositions 
 in favour of Catherine Marsden. 
 
 Ei<j;;ht months afterwards, on the i6th of 
 December 1856, Else professed to have found 
 another codicil, dated the 6th of January 1856. He 
 had been appointed to succeed Mr. Nuttall as sur- 
 veyor of highways ; a question arose as to the price 
 of teamwork. The book containing this information 
 was alleged to be at Mr. Newbold's office, and Mr. 
 Newbold told Else to search amongst a number of 
 Mr. Nuttall's papers which were there. Else found 
 the book, as was stated, in the presence of Mr. 
 Newbold and his son. In it was pinned the second 
 codicil. Roughly speaking, the first codicil diverted 
 from the original dispositions about one third of Mr. 
 George Nuttall's property, and the second codicil 
 disposed of about another third — (except for some 
 small annuities, including one of ^20 to the son of 
 Job Knowles, one of the attesting witnesses) — in 
 favour of Else and the Marsdens. 
 
 The circumstances under which the third codicil 
 was found on the 9th of October 1857 were even 
 more startling. It was discovered in a hayloft, 
 which, it was suggested, the testator had used as a 
 secret room. Else's account was that he desired to 
 have the place cleaned, that he took a boy with him 
 and told him to clean the window ; that the boy asked 
 him (Else) to open the window, that he took hold of
 
 CASES IN ILLUSTRATION. 407 
 
 the window board to help himself up, when it came 
 out ; that he was about to replace it when the boy 
 exclaimed "What's that?" Whereupon he looked 
 and found a hole inside the wall containing a j ir. 
 In the jar were a canvas bag and a paper. In the 
 canvas bag were twenty sovereigns ; the paper was 
 the third codicil dated the 12th of January 1856, 
 six days later than the date of the second codicil. 
 As to its dispositions, it is only necessary to say 
 that the net result of the three codicils, so far as the 
 interest of John Nuttall and his children was con- 
 cerned, was to reduce the large property left to him 
 to about the value of ^2 10 a year, and, so far as Else 
 was concerned, to increase his interest under will and 
 codicils from ^140 a year to about ^1,200 a year. 
 
 John Nuttall, the original devisee, died about six 
 weeks after the testator. He died of consumption, 
 and was either dead or moribund when the first 
 codicil came to light He was a stonemason by 
 trade. His children were very young, and he ap- 
 pointed as executors and trustees of his will two 
 friends and fellow workmen, Jackson and Shaw. 
 They were at the times when the first and second 
 codicils were put forward unable to afford litigation. 
 When, however, the third cociicil turned up, they, 
 greatly to their credit, determined at all hazards to 
 dispute the codicils. It is interesiing to be able to 
 add that before the lonsf litioation came to an end 
 they were in business on their own accounts, and 
 one of them ultimately became contractor for some 
 of the largest works, public and other, carried out in 
 his day. 
 
 The first codicil purported to be witnessed by two
 
 4oS FORCE OF CIRCUMSTANTIAL EVIDENCE. 
 
 labourers in the testator's employment : they proved 
 unsatisfactory witnesses, and had to be examined 
 adversely by the plaintiffs who sought to establish 
 the codicil. They contradicted one another and 
 themselves, and prevaricated to the last extent. 
 There can be little doubt that they had been called 
 in by the testator to witness something, probably a 
 codicil (o-) ; and the suggestion made was that that 
 codicil was found by Else, and suppressed by him, 
 and that the attesting witnesses to the first codicil 
 had really witnessed a codicil executed by the 
 testator, which they knew to be different from the one 
 to which they were asked to swear as being the 
 testator's. The second and third codicils were both 
 attested by Job Knowles, a farmer and neighbour 
 of the testator, and John Adams, an elderly surgeon 
 in the neighbourhood. Both these witnesses 
 said they were at the testator's house and signed as 
 witnesses on the 6th and 12th of January 1856 
 respectively. Catherine Marsden was not called as 
 a witness, a fact which caused much comment ; Else 
 appeared and swore to finding the codicils, and a 
 few other witnesses were called as to various circum- 
 stances, including a bank clerk who declared that 
 
 (g-) In the epitome, S. H. had been crossed out, no doubt after the 
 death of Sarah Holmes. The preceding entry in the epitome was 
 " Hardwich and Twitch Nook to M. T." These properties were in 
 the will left to Maria Travis. The entry next to this was " Brockhurst, 
 S. H." At some time brackets had been put both to the right and to 
 the left of these two entries, and it is a curious circumstance that 
 certain blottings of both the two diagonal lines which erased "S. H." 
 and the brackets made it certain that both the erasure and the 
 brackets were written at once, and the paper folded over before the 
 ink was quite dry. The inference was irresistible that after Sarah 
 H 'Imes's death, there had been a codicil by which Brockhurst was 
 added to the devise already made to Maria Travis.
 
 CASES IN ILLUSTRATION. 409 
 
 the slo^natures were orenuine, and that he would have 
 paid cheques so signed by the testator. 
 
 The defendants' case involved, as the Lord 
 Chief Justice remarked, charges of conspiracy to 
 commit fraud, forgery and perjury. Stress was of 
 course laid on the extraordinary character of the 
 circumstances under which the codicils were pro- 
 duced, their appearance at intervals, each in the order 
 of date, and their uniform tenor in favour of Else 
 and the Marsdens. These incidents, as the Lord 
 Chief Justice subsequently pointed out to the jury, 
 strange as they might be, were not impossible and 
 might be accepted if the jury were satisfied by the 
 rest of the evidence that the codicils themselves were 
 genuine. The real strength of the defendants' case 
 lay in the documents themselves and the conclu- 
 sions to be gathered from their contents. This 
 part of the case was worked up with minute care, 
 and the details are instructive in showing the steps 
 by which circumstantial proof becomes irresistible. 
 
 The will and codicils were obviously in different 
 styles of writing ; but the testator wrote in two styles, 
 and the codicils, as well as the interlineation in the 
 will, were alleged to be in his more formal style, 
 which resembled John Else's writing. Hence it 
 became necessary to examine the genuine and dis- 
 puted documents for further distinctions, and to 
 compare them with undisputed writings of the 
 testator and John Else, 
 
 There were mistakes in spelling in both the will 
 and the codicils. In the will, which was as lono" as 
 the three codicils taken together, appeared three words 
 misspelt, viz. " surgion," " debth," "oweing," and
 
 4lO FORCE OF CIRCUMSTANTIAL EVIDENCE. 
 
 in some fifty or sixty letters and other undisputed 
 writings of the testator (some of great length, and 
 all obtained and put in without any selection) 
 " chage " (for charge), " stile " for " style," " rabbitts," 
 " untill," "strengh," " seperate," " exhempt," and 
 perhaps some others ; but those here given were the 
 most striking. The codicils contained many more 
 blunders, and of a much grosser and more ignorant 
 kind ; for example, " executers," " conferm," "hears" 
 (heirs), " contiguaes " (contiguous), "annexd," all of 
 which were spelt correctly in the will. Great 
 emphasis was laid upon two mistakes which ap- 
 peared in the codicils in respect of words which 
 were spelt correctly in the will. These were 
 '' doughter" for " daughter," which the testator always 
 spelt correctly, but which from a comparison with 
 very many of his writings, it was shown that Else 
 always spelt with an " o," except upon one single 
 occasion when he wrote "dughter," [Ii) and '* tith 
 commuation " — for " tithe commutation." Some 
 twenty-eight letters were produced written by the 
 testator to the Tithe Commutation Commissioners, 
 in which the expression was never incorrectly 
 spelt. 
 
 Many gross mistakes in spelling were adduced 
 from other documents in Else's handwriting — such 
 blunders as " pursons," "shuld," "gitting," " usuel," 
 and so forth, of a different character from most of 
 the testator's mistakes, which were often mere 
 
 {h) "Doughter" is a phonetic misspelling, corresponding with a 
 pronunciation of the word common in that part of the country. Else 
 was accustomed to serve County Court processes, and many County 
 Court documents were produced, indorsed by him with memoranda of 
 service " by leaving a copy with his doughter."
 
 CASES IN ILLUSTRATION. 4 II 
 
 slips of a rapid penman, or archaisms, as " oweing," 
 " untill," and " musick." 
 
 Else very frequently put a strong comma after 
 the signature of his own name ; Mr. Nuttall occa- 
 sionally put a light full stop after his signature — but 
 never a comma ; the signatures to the three codicils 
 had a strong comma after " George Nuttall." In 
 respect of handwriting, perhaps the most cogent 
 proof of all was discovered in the crossing of the 
 "t" in the simple word "to," when standing by 
 itself. In the will the "t" was uncrossed fifty 
 one times, whole-crossed (z) five times, but half- 
 crossed never ; so in fifty of the testator's letters 
 the "t" was uncrossed one hundred and thirty-one 
 times, whole-crossed fourteen times, but, again, never 
 half-crossed. In fact, throughout a very large 
 quantity of undisputed writings of the testator only 
 two half-crossed " t's " in the word " to " were dis- 
 covered, and they were in two instances in which 
 the w riting was of the stiHest and most formal kind — 
 one of them occurring in the phrase "Schedule to 
 
 the " ; the words being almost a kind of print. 
 
 On the other hand, a great number of Else's 
 writings showed that half-crossing the "t" in "to" 
 was his habit. In one document of Else's — a will 
 which he had written for one Euke Wilson — 
 twenty-six out of twenty-eight "t's" in the word " to" 
 were half-crossed, and in another fifteen out of 
 sixteen. In the interlineation of the will "to" 
 occurred three times, and each time the "t"was 
 half-crossed ; and in the three codicils there w^ere 
 
 (?■) The crossing stroke extending both right and left of the down 
 stroke.
 
 412 FORCE OF CIRCUMSTANTIAL EVIDENCE. 
 
 sixteen half-crossed " t's," twelve uncrossed, and 
 th.irty-three whole-crossed. The epitome of the will 
 and the first codicil presented so small a field for 
 criticism of handwriting that it had always been a 
 difficulty in the way of the defendants. The dis- 
 puted portions were far more like the running hand of 
 the undisputed part, and presented a closer general 
 resemblance to the handwriting of the testator than 
 any other of the incriminated documents. It had, 
 therefore, been greatly relied upon by the plaintiffs, 
 and it had this cardinal importance : that, if the 
 whole of it were genuine, it followed almost for a 
 certainty that the first codicil, with all its solecisms 
 and mistakes in spelling, was genuine. If so, a 
 great difficulty was removed from the acceptance of 
 the second and third. The fact that the crossing of 
 the " t " in the preposition " to " was really a key 
 to the two handwritinpfs was discovered between the 
 second and third trials. The epitome contained 
 fourteen " t's " relating to the will ; of these, one was 
 whole-crossed, and thirteen uncrossed. It was Mr. 
 Nuttall's prevailing habit to leave the " t " (in " to") 
 uncrossed. The disputed portions of the epitome 
 contained the word "to" seven times. In every 
 instance the "t" was half-crossed, and the half- 
 page of note-paper, which had been more or less of 
 a stumbling-block in the way of the defendants, be- 
 came one of their strongest pieces of evidence. In- 
 deed, when carefully considered it is of irresistible 
 force — it is one of those circumstances '* which 
 never lie." The Lord Chief Justice said, in the 
 course of his summing up, that the habit of crossing 
 a " t " in " to " in a particular way might at first sight
 
 CASES IN ILLUSTRATION. 413 
 
 appear to be a small matter ; but that in a case which 
 was full of wonders, this was, perhaps, the most re- 
 markable as well as the most convincing incident. 
 
 (6.) A curiously similar instance, in which a single 
 stroke was again decisive as to the genuineness 
 of disputed documents, occurred in the case of 
 Howe V. Burchardt and another, which was tried be- 
 fore Mr. justice Wills at the Middlesex Sittintrs in 
 February 1891. 
 
 The plaintiff Howe brought an action against the 
 executors of a Mr. Ashton on a cheque for ^1,375, 
 which he alleged that the testator had given to him 
 three or four days before his death. The body of 
 the cheque was admittedly written by the plaintiff, but 
 as he alleged, at the request of the testator. In 
 order to show how the sum of ^1,375 was arrived 
 at, Howe produced a memorandum, which he alleged 
 the testator had written, containing a number of 
 figures. There happened to be amongst these figures 
 several sevens. Mr. Ashton was a comparatively 
 well-educaied man, who wrote with the free pen of 
 a rapid writer, Howe had been originally a railway 
 porter, who had raised himself somewhat in the 
 world, and was then carrying on a small business. 
 He wrote the laboured hand of an uneducated man. 
 Many hundreds of sevens written severally by 
 Ashton and by Howe were produced. They were 
 found in account books, upon paying-in slips, in 
 letters, and many other documents. Ashton always 
 made his seven by one continuous action of the 
 pen ; Howe always by two, invariably making at the 
 beginning of his figure a heavy vertical bar which
 
 414 FORCE OF CIRCUMSTANTIAL EVIDENCE, 
 
 crossed the short horizontal stroke at the top of the 
 seven — thus : Ashton's figure 7 ; Howe's '7 or -7 or f. 
 In no instance could any deviation from this law 
 be discovered. The cheque sued upon contained 
 two sevens, and the memorandum showing how 
 the ^1,375 was arrived at several more, all made 
 in Howe's fashion. Some other documents were in 
 dispute, as to which the same observation applied. 
 
 Another notable and interesting fact in the same 
 case, which bore directly upon the genuineness of 
 the cheque, was that the cheque was signed " B. 
 Ashton." Mr, Ashton was in the habit of signing 
 his letters in that way, but his cheques were always 
 signed " Benj, Ashton " : and a letter was produced 
 upon the trial which was admitted to have been in 
 the possession of the plaintiff shortly after the death 
 of the testator, signed " B. Ashton," and bearing so 
 striking a resemblance to the signature on the cheque 
 that it was alleged by the defendants to have been 
 the original from which the forged signature had been 
 traced. Mr. Ashton's bankers produced more than 
 870 of his cheques, extending over five years, in- 
 cluding several signed within a very few days of 
 his death, none of which were signed " B. Ashton." 
 Howe was unaware of this fact. The case was a 
 complicated one, and involved a series of inventions 
 by the plaintiff of the most ingenious and audacious 
 kind, the exposure of which required twelve days of 
 patient investigation [^). Howe was afterwards 
 tried at the Old Bailey, before Mr. Justice Charles, 
 for forgery, and convicted. 
 
 (k) See also p. 197, supra^ where another fraudulent device in this 
 case is related.
 
 CASES IN ILLUSTRATION. 415 
 
 (7.) A remarkable case, illustrating how one small 
 clue or fact may lead not only to the identification 
 of the culprit, but to the detection of his motive and 
 to the complete circumstantial proofs of his crime, 
 was tried before the Lord Chief Justice of England 
 at the Central Criminal Court in February 1901. 
 The crime was committed in Norfolk, but the pro- 
 ceedings were removed under the provisions of 19 
 & 20 Vict. c. 19 (/). 
 
 At about six o'clock on the morning of Sunday, 
 the 23rd of September 1900, the body of a woman 
 was found on the south beach at Yarmouth. She 
 was lying on her back, her hands by her side, and 
 her hair loose upon her shoulders ; there were 
 scratches and abrasions on her face, and a mohair 
 bootlace was tied so tightly round her neck that the 
 flesh was doubled over it. Death was due to 
 strangulation, and having regard to the tightness 
 with which the lace was tied and the way it was 
 knotted, there was no doubt whatever that the 
 woman had been murdered. She had rings upon 
 her fingers ; but there was no clue to her identity 
 except a laundry mark, 599, on some of her linen. 
 She was a stranger to Yarmouth, having come 
 there with her baby on the 15th of September, and 
 had been lodging since that date with some people 
 named Rudrum. Nothing was known of her except 
 that she went by the name of Mrs. Hood, owing to 
 the fact that she had received a letter on Friday 
 evening (21st September) addressed in that name. 
 It bore the Woolwich post-mark. A few days 
 before her death she had been photographed on the 
 
 (/) Commonly known as " Palmer's Act."
 
 4l6 FORCE OF CIRCUMSTANTIAL EVIDENCE. 
 
 shore, and the photograph was found in her room- 
 it showed that she was wearing a long chain ; and 
 it was proved that she was wearing a long gold 
 chain and a silver watch when she went out on the 
 evening of Saturday (22nd September). The watch 
 and chain were not on the body, and no trace of them 
 could be found. She was last seen alive by Mrs. 
 Rudrum on that Saturday evening, between eight 
 and nine o'clock, waiting near the Town Hall, and 
 obviously expecting to meet someone — Mrs. Rudrum 
 having stopped and conversed with her for a short 
 time. This was all that could be discovered about 
 the deceased woman at that time, and towards the 
 end of October the coroner's jury were forced to 
 find a verdict of murder of a woman unknown by a 
 man unknown. 
 
 Ultimately it was discovered that the number 599 
 was the laundry mark of linen coming from a house 
 at Bexley Heath, in which a woman named Bennett 
 had been living with a biby. She proved to be 
 the woman in the photograph. This led to the 
 arrest, on the 6th of November, of the prisoner 
 Herbert John Bennett, who was her husband. He 
 was then living at Woolwich, and was employed as 
 a labourer at the Arsenal. In the room in which 
 he lodged were found a long gold chain and silver 
 watch, and these were identified at the trial as 
 having belonged to his wife, and as having been 
 worn by her on the night of Saturday, the 22nd of 
 September. On his arrest the prisoner said he had 
 never been to Yarmouth ; but the following facts 
 were proved which revealed his previous history 
 and his movements at the date of the murder. The
 
 CASKS IN ILLUSTRATION. 417 
 
 prisoner made the acquaintance of the deceased by 
 taking music lessons of her ; they were married in 
 July 1897, ^^<^ they lived with the deceased's grand- 
 mother until her death in April 1898. Their baby 
 was born in October 1898. In March 1900 they 
 went to South Africa and bick, having booked 
 passages in the name of Mr. and Mrs. Hood. 
 Returning in May of the same year, they took 
 rooms at Plumstead, where they lived together 
 unhappily, the prisoner threatening his wife's life, and 
 saying that he wished she were dead. From June 
 the prisoner was leading a double life. He took a 
 room at Woolwich, where he was employed for 
 some time as a grocer's assistant, and passed as a 
 single man ; the deceased took a house at Bexley 
 Heath and lived there, being occasionally visited by 
 the prisoner. About this time he was introduced, 
 throuo^h a fellow lods^er at Woolwich, to a orirl named 
 Alice Meadows, and paid her a great deal of atten- 
 tion. They arranged to go to Yarmouth together 
 for the Bank Holiday, and on the 30th of July the 
 prisoner wrote to Mrs. Rudrum for lodgings, but 
 received an answer that her lodpfinors were enoao-ed 
 for Bank Holiday. The letter to Mrs. Rudrum 
 was in the same handwriting, and was written upon 
 the same kind of blue paper as the letter already 
 mentioned as addressed to Mrs. Hood, and received 
 by the deceased woman on Friday, the 21st of Sep- 
 tember. The prisoner and Alice Meadows, how- 
 ever, went to Yarmouth, and stayed at the Crown 
 and Anchor Hotel. At the end of August they 
 went for a fortnight to Ireland. The prisoner spent 
 money freely, and upon his return was engaged to 
 
 C.E. E E
 
 4l8 FORCE OF CIRCUMSTANTIAL EVIDENCE. 
 
 Alice Meadows, and gave her a ring. They were 
 to be married the following June. 
 
 On Friday, the f4th of September, the prisoner 
 visited his wife and child at Bexley Heath. Pre- 
 parations were at once made by the wife for leaving 
 the house. The same evening the prisoner saw 
 Alice Meadows in Bayswater and told her that he 
 could not see her the following day as he had to go 
 to Gravesend on account of the illness of his grand- 
 father. The following day (the 15th) he did not 
 work at the Arsenal. The wife arrived at her 
 lodoines in Yarmouth at about nine o'clock in the 
 evening of the 15th. She stayed only long enough 
 to put the child to bed, and then went out, not 
 returning till nearly midnight. The prisoner arrived 
 at the Crown and Anchor some time after eleven 
 o'clock on the same evening, slept there, and went 
 up to London by the first train in the morning at 
 7.20. He reached London about 11.30, and at 12.0 
 noon was at the house of Alice Meadows's mother, 
 in Stepney. The following Thursday he again told 
 Alice Meadows that he could not see heron Sunday 
 because he intended to go to Gravesend to see his 
 grandfather. On Saturday (22nd) at about 3.0 p.m. 
 he spoke to his landlady at Woolwich as if he were 
 going away by train ; he had a time-table in his 
 hand. At about lo.o that evening —after Mrs. 
 Rudrum had spoken to the deceased waiting out- 
 side the Town Hall — she and the prisoner were 
 seen in a public-house on the quay at Yarmouth. 
 At I i.o two people on the beach saw a man and a 
 woman seat or lay themselves on the sand, and soon
 
 CASES IN ILLUSTRATION. 419 
 
 after heard cries of "Mercy! mercy!" and groans, 
 and then no further sound. 
 
 At about midnight the prisoner again arrived at 
 the Crown and Anchor, hot and breathless, and said 
 he must catch the early morning train to London. 
 This he did, and went straight to Hyde Park, where 
 he met Alice Meadows. His subsequent conduct 
 was consistent only with a knowledge that his wife 
 was dead. He urged Alice Meadows to marry him 
 at once. He paid the house agents ^5 to get rid 
 of the house his wife had taken at Bexley Heath. 
 He gave Alice Meadows some of his deceased wife's 
 property, and told her that a cousin was going to 
 South Africa with his wife and child, and that he had 
 bought their furniture. In consequence, on the 17th 
 of October, Alice Meadows gave up her situation in 
 Bayswater, and a residence was fixed upon, and at 
 the prisoner's arrest the marriage was imminent. 
 After a trial lasting a week the prisoner was con- 
 victed, and afterwards executed (w). 
 
 It is scarcely possible, in the absence of unim- 
 peachable direct evidence, to conceive of any 
 grounds of moral assurance and judgment more 
 satisfactory and conclusive than those afforded by 
 such combinations of facts as were presented in the 
 foregoing cases. 
 
 (in) Rex V. Bennett, known as The Yarmouth Murder, coram Lord 
 Alverstone, L.C.J., C. C. C, Feb. 24, 1901, See the Times Report, 
 Feb. 25, et seq.
 
 420 force of circumstantial evidence. 
 
 Section 4. 
 conclusion. 
 
 The rules of evidence are the practical maxims of 
 legal and philosophic experience, matured and 
 methodized by a succession of thoughtful men, 
 as the best means of discriminating truth from 
 error, and of contracting as far as possible the 
 dangerous power of judicial discretion. They have 
 their origin in man's nature, as an intellectual and a 
 moral being; and "are founded" (to use the 
 language of one of the most eloquent of advocates), 
 " in the charities of religion, in the philosophy of 
 nature, in the truths of history, and in the experience 
 of common life." Such rules must of necessity be 
 substantially the same, in all cases ; and the observ- 
 ance of them is indispensable to social security 
 and happiness. To disregard them, under what- 
 ever circumstances or pretext, is to subject to the 
 sport of chance those fundamental rights which it is 
 the object of social institutions to secure. 
 
 The design of this Essay has been to investigate 
 the foundations of our faith in circumstantial 
 evidence, to ascertain its limits and its just moral 
 effect, and to illustrate and confirm the reasonable- 
 ness of the practical rules which have been 
 established in order to prevent unauthorised 
 assumptions, and to secure to relevant facts their 
 proper weight. It has been maintained that cir- 
 cumstantial evidence is inherently of a different 
 and inferior nature from direct and positive testi-
 
 CONCLUSION. 421 
 
 .mony ; but that nevertheless such evidence, althG;igh 
 not invariably so, is frequently superior in proving 
 power to the average strength of direct evidence ; 
 and that, under the safeguards and qualifications 
 which have been stated, it affords a secure crround 
 for the most important judgments in cases where 
 direct evidence is not to be obtained. 
 
 It must, however, be conceded, that "with the 
 wisest laws, and with the most perfect administration 
 of them, the innocent may sometimes be doomed to 
 suffer the fate of the guilty ; for it were vain to hope 
 that from any human institution all error can be 
 excluded "(;2). But certainty has not always been 
 attained even in those sciences which admit of 
 something approaching to demonstration ; still less 
 can unfailing assurance be invariably expected in 
 investigations which are largely concerned with 
 moral considerations and with the facts and impulses 
 of human nature. Nor can any argument against 
 the validity and sufficiency of circumstantial evi- 
 dence as a means of arriving at moral certainty be 
 drawn from the fact that it has occasionally led to 
 erroneous convictions, which does not equally mili- 
 tate against the validity and sufficiency of moral 
 evidence of every kind ; and it is believed that a far 
 greater number of wrong convictions have arisen 
 from false' and mistaken direct and positive testi- 
 mony, than from erroneous inferences drawn from 
 circumstantial evidence. " Admitting," said Mr. 
 Justice Story, " the truth of such cases, are we, then, 
 to abandon all confidence in circumstantial evidence, 
 
 («) Romillys Obs. on the C. L. of Engl. 74.
 
 42 2 FORCE OF CIRCUMSTANTIAL EVIDENCE. 
 
 and in the testimony of witnesses ? Are we to 
 declare that no human testimony to circumstances 
 or to facts is worthy of beHef, or can furnish a just 
 foundation for a conviction ? That would be to sub- 
 vert the whole foundations of the administration of 
 public justice " {o). 
 
 These considerations ought not therefore to pro- 
 duce an unreasonable and indiscriminate scep- 
 ticism ; their legitimate effect should be to inspire 
 a salutary caution in the reception and estimate 
 of circumstantial evidence, and to render the 
 legislator especially wary how he authorises, and 
 the magistrate how he inflicts, punishment of a 
 nature which admits neither of reversal nor mitigra- 
 tion. It is indispensable, however, under every 
 system, to the very existence of society, that the 
 tribunals should act upon circumstantial evidence. 
 Infallibility belongs not to man ; and even his 
 strongest degree of moral assurance must be 
 accompanied by the possible danger of mistake ; 
 but after just effect has been given to sound 
 practical rules of evidence, there will remain no 
 other source of uncertainty or fallacy than that 
 general liability to error, which is incidental to all 
 investigations founded upon moral evidence, and 
 from which no conclusion of the human judgment, 
 whether based upon direct or circumstantial evi- 
 dence, can be absolutely and entirely exempt. 
 
 (o) Wharton's Criminal Law of the U. S. 343, 3rd ed. 1855.
 
 AMERICAN NOTES. 
 
 [Note t5 Chapter VIII.] 
 
 See note to Chapter II on the relative value of direct and 
 circumstantial evidence. 
 
 Weight of Circumstances as a Basis for Inference. 
 
 In People v. Videto, i Parker Crim. (N. Y.) 603, Walworth, J., 
 thus classifies the presumptions arising from the proof of various 
 circumstances, and discusses the strength of the inferences to be 
 drawn from them. 
 
 " I. Violetit Presumptions. — Where the facts and circumstances 
 proved would necessarily attend the fact presented. As, if your 
 horse had been shot in the stable by a musket-ball, and it was 
 proved that a man was seen immediately before to load his gun 
 and go into the stable ; that the report of a musket was heard in 
 the stable and that the man immediately came out with his gun 
 and fled. These circumstances would raise a violent presumption 
 that the man shot the horse, because the loading of the gun, the 
 report in the stable, the gun being unloaded when he came out, are 
 all facts which must necessarily attend the fact presumed ; to wit, 
 that he shot the horse. And upon such testimony, unexplained, 
 it would be the duty of a jury to give a verdict against him, equally 
 as it would be if the shooting of the horse was positively sworn to 
 by the same witness. For in either case, if the witness was to be 
 credited, there could be no reasonable doubt of the guilt of the 
 accused, although there was a possibility of his innocence. 
 
 " 2. Probable Presumptions. — Where the facts and circum- 
 stances proved usually attend the fact presumed. As, if your 
 horse is stolen, and shortly thereafter he is found in the possession 
 of the accused, who refuses to give any explanation as to the 
 manner in which the horse came into his possession. These cir- 
 cumstances raise a probable presumption that the accused com-
 
 ^22 b AMERICAN NOTES. 
 
 niitieil the theft. It is every day's practice to convict on such 
 circumstantial evidence, if the transaction is unexplainetl. 
 
 '' 3. Light or Rash Fresiunptions. — When the facts and circum- 
 stances proved miglit probably attend the fact presumed. As, if a 
 man gave medicine to liis wife, and she died shortly afterwards, 
 it would be a light presumption of the fact that he had given her 
 poison instead of medicine, and could not legally authorize his 
 conviction for murder. But there are many circumstances which, 
 taken separately, would only amount to light ox rash presumptions, 
 and as such entitled to no weight, which, if they were well proved 
 and connected together in one case, might amount to probable or 
 even to violent presumption of guilt. As, if a wife die very sud- 
 denly, with the usual symptoms of having been poisoned. It is 
 proved that she and her husband were on ill terms ; that he had 
 threatened her life ; that he gave her liquor to drink shorUy before 
 those symptoms appeared ; that he was seen to put something into 
 the bottle of liquor ; that he purchased arsenic the day before ; 
 that the bottle being inquired for he immediately flung away the 
 liquor remaining therein ; that he gave no satisfactory account of 
 what had been done with the arsenic ; that he caused her to be 
 buried unusually soon after her death ; that the contents of her 
 stomach being analyzed were found to contain arsenic. Each of 
 these circumstances, taken by itself, and perhaps two or three of 
 them together, would be nothing more than rash or light presump- 
 tions of the guilt of the husband. But if all the circumstances I 
 have enumerated were satisfactorily proved by credible witnesses 
 and were left unexplained by the accused, they might, when taken 
 together, carry irresistible conviction to the minds of the jury that 
 he had killed his wife by poison." 
 
 Relative Weight to be Given to Circumstances. 
 
 Where there is one circumstance favorable to a certain con- 
 clusion, and several circumstances unfavorable to it, the first 
 circumstance is not to be weighed against each of the others 
 separately but against them all collectively. In illustration of this 
 the following case is stated in Hubback's Succession, Chapter VI. 
 48 Law Library, *447. " Elizabeth Jennens, the ancestress of the 
 plaintiff, was shown to have been, in adult life, a Roman Catholic.
 
 AMERICAN NOTES. 422 c 
 
 The family with whom it was endeavored to connect her were 
 Protestant. Suppose it to be more probable that she should have 
 changed her religion than that there should have been two or more 
 persons of one name, district, and period, and corresponding in 
 some other particulars, and let the relative probabilities be as 2 
 to I ; whereby if the truth be denoted by unity, the greater 
 probability may be represented by the fraction §. But it was 
 further proved that the plaintiff's ancestress could not write her 
 name, but made her mark. Let it again be conceded to be 
 more probable by 5 to 4 (equal to of the truth) that the 
 daughter of an opulent family should have been so much neg- 
 lected, in youth, or incapacitated by disease, or other causes, as 
 to have been unable to write, than that there should have been 
 more than one Elizabeth Jennens, with the proved characteristics 
 in common. The chances in each step of the argument are thus 
 in favor of the identity ; but the result from both is to be ascer- 
 tained by multiplying the fractions into each other, § X f , which 
 will give \^ as indicating the degree of likelihood that there was 
 but one Elizabeth Jennens; that is, the probabilities are as 10 in 
 favor of that conclusion, to 17 against it. 
 
 " Of course a very few more incongruities would make the pre- 
 ponderance of the probability against the identity overwhelming ; 
 and in this case, several others being proved, the Vice Chancellor 
 thought it so clear that the plaintiffs ancestress was not the iron- 
 master's daughter that he refused an issue to try (what depended 
 on such identity) the plaintiff's proximity of kindred to the 
 intestate in the cause. " 
 
 In discussing the defence of alibi. Chief Justice Shaw, in Com. v. 
 Webster, 5 Cush. 295, 318, says : " When a fact has occurred, with 
 a series of circumstances preceding, accompanying, and following 
 it, we know that these must all have been once consistent with each 
 other ; otherwise the fact would not have been possible. There- 
 fore, if any one fact necessary to the conclusion is wholly incon- 
 sistent with the hypothesis of the guilt of the accused, it breaks 
 the chain of circumstantial evidence, upon which the inference 
 depends ; and, however plausible or apparently conclusive the 
 other circumstances may be, the charge must fail. "
 
 422 d AMERICAN NOTES. 
 
 Multitude of Circumstances. 
 
 Circumstances taken separately may be wholly insufificient upon 
 which to base an inference, and yet all together be absolutely con- 
 vincing. This is especially true when the evidence is derived from 
 various independent sources, and there are various coincidences 
 all leading to the same conclusion. U. S. v. Searcey, 26 P'ed. 
 Rep. 435 ; U. S. v. Isla De Cuba, Fed. Cas. 15447. 
 
 Generally the multitude of circumstances from which an in- 
 ference is drawn guarantees the correctness of the inference, but 
 in some cases the truth of each circumstance depends upon the 
 truth of a preceding circumstance. In such case the circumstances 
 may truly be likened to a chain, and then the conclusion drawn 
 is no stronger than the weakest link. State v. Shines, 125 
 N. C. 730; Tompkins v. State, 32 Ala. 569, Bressler v. People, 
 1 17 111. 422. 
 
 A fact which, standing alone, would be consistent with in- 
 nocence, may, when taken in connection with other facts, 
 become significant evidence of guilt. Com. v. Kennedy, 97 
 Mass. 224. 
 
 " Evidence which is colorless taken by itself, which establishes 
 neither a constituent nor a fact pointing by inference to a con- 
 stituent of a crime, may be made significant by other evidence, 
 and so may be made admissible. It need not be self-justifying 
 without regard to the other circumstances proved." Com. v. 
 O'Neil, 169 Mass. 394; Com. v. Williams, 171 Mass. 461. 
 
 Since small, and, when considered alone, meaningless circum- 
 stances may be of importance in connecting other circumstances, 
 every fact, however trivial, which can aid the jury in reaching a 
 conclusion should be admitted in evidence, even so slight a cir- 
 cumstance as the burning of a light at a late hour of the night 
 (People V. Johnson, 2 Wheeler Crim. Cas. (N. Y.) 361), or the 
 whispering together of two women after they have retired for the 
 night (People v. Bemis, 51 Mich. 422), or that one charged with 
 larceny was seen about the time of the theft in company with one 
 who afterwards had the stolen goods in his possession. Langford 
 V. State, 17 Tex. Crim. 445.
 
 AMERICAN NOTES. 422 ^ 
 
 Considerations Increasing the Force of Circumstances. 
 
 The possession of money of the same kinds as that recently 
 stolen may be of slight or no weight as evidence against the ac- 
 cused. But if such money is rarely seen in circulation at the place 
 where found the fact of possession becomes of much greater 
 importance. And its value as evidence is still further increased 
 when both the money found in possession of the accused and that 
 which was stolen consists of a combination of a large number of 
 Chilian half-ounces and a single Peruvian ounce. People v. Getty, 
 49 Cal. 581. 
 
 The weight of footprints, as evidence to identify the accused 
 as the one committing the crime, is greatly increased if they are 
 shown to have not only the same size and shape of those made 
 by the defendant's shoes, but that they have some special pecu- 
 liarity corresponding to the defendant's shoes or his physique. 
 Glover V. State, 114 Ga. 828 (V-shaped mark in the heel); 
 McGill V. State, 25 Tex. App. 499 (shoe run down at the heel, 
 and patched) ; Green v. State. 1 7 Fla. 669 (leg deformity) ; 
 Schoolcraft v. People, 117 111. 271 (right foot turned in). 
 
 Circumstances Drawn from Independent Sources. 
 
 " One other general remark on the subject of circumstantial 
 evidence ^is this : that inferences drawn from independent sources 
 different from each other, but tending to the same conclusion, 
 not only support each other, but do so with an increased weight. 
 To illustrate this, suppose the case just mentioned of the wad of 
 a pistol consisting of part of a ballad, the other part being in the 
 pocket of the accused ; it is not absolutely conclusive that the 
 accused loaded and wadded the pistol himself; he might have 
 picked up the piece of paper in the street. But suppose that by 
 another and independent witness it were proved that that indi- 
 vidual purchased such a ballad at his shop; and further, from 
 another witness, that he purchased such a pistol at another shop. 
 Here are circumstances from different and independent sources, 
 bearing upon the same conclusion ; to wit, that the accused 
 loaded and used the pistol ; and they, therefore, have an increased 
 weight in establishing the proof of the fact." Shaw, C. J., in Com. 
 V. Webster, 5 Cash. 295, 317.
 
 422/ AMERICAN NOTES. 
 
 It greatly strengthens a case resting on circumstantial evidence 
 and negatives the existence of fraud and perjury on the part of 
 witnesses to show that they have acted independently, and that 
 each has reported the facts within his knowledge without knowing 
 the presence of other witnesses or without knowing the existence 
 of the other circumstances. Rex v. Genge, Camp. 13, 3 Enc. 
 Evidence, 69. 
 
 Corrobo7-ating Circumstances. 
 
 Where an accomplice testified that he and the defendant car- 
 ried the body of the deceased down to the river at a certain time, 
 where it was later found, the accomplice's wife may testify that her 
 husband was absent from home at the time specified. Lindsay 
 V. People 63 N. Y. 143. 
 
 Dangers Itiherent in Circumstantial Evidence. 
 
 And yet notwithstanding the multitude of circumstances from 
 which an inference is drawn, that inference may be incorrect. 
 " In cases supported by circumstantial evidence, juries should 
 remember that, although the number of facts drawn from appar- 
 ently independent sources renders concerted perjury both highly 
 improbable in itself and easy of detection if attempted ; yet, the 
 witnesses in such cases are more likely to make unintentional 
 misstatements than those who give direct testimony. The truth 
 of the facts they attest depends frequently on minute and careful 
 observation, and experience teaches the danger of relying im- 
 plicitly on the evidence of even the most conscientious witnesses 
 respecting dates, time, distances, footprints, handwriting, admis- 
 sions, loose conversations, and questions of identity. Yet these 
 in general are the links in the chain of circumstances by which 
 guilt is sought to be established. The number, too, of the wit- 
 nesses, who must all speak the truth or some link will be want- 
 ing, renders additional caution the more necessary. Besides, 
 it must be remembered that, in a case of circumstantial evidence 
 the facts are collected by degrees. Something occurs to raise a 
 suspicion against a particular party. Constables and police officers 
 are immediately on the alert, and, with professional zeal, ransack 
 every place and paper, and examine into every circumstance 
 which can tend to establish, not his innocence, but his guilt. Pre-
 
 AMERICAN NOTES. 422^ 
 
 suming liim guilty from the first, they are apt to consider his ac- 
 quittal as a tacit reflection on their discrimination or skill, and, 
 with sometliing like the feeling of a keen sportsman, they deter- 
 mine, if possible, to bag their game. Though both sportsmen and 
 policemen alike would be horrified at anything unfair or 'unsports- 
 manlike,' yet, as both start with this object in view, it is easy to 
 unintentionally misinterpret innocent actions, to misunderstand in- 
 nocent words, — for men readily believe what they anxiously desire, 
 — and to be ever ready to construe the most harmless facts as con- 
 firmations of preconceived opinions. These feelings are common 
 alike to the police, to counsel, engineers, surveyors, medical men, 
 antiquarians, and philosophers ; indeed, to all persons who first 
 assume that a fact or system is true, and then seek for arguments 
 to support and prove its truth." i Taylor on Evidence, § 68.
 
 APPENDIX 
 
 Note to p. 144. 
 
 The Editor is indebted for the following note to his son, 
 W. A. Wills, M.D., F.R.C.P. 
 
 During the last three years experiments have been carried 
 on by Bordet and Uhlenhuth which have resulted in the 
 elaboration of a test by which it is claimed that human blood 
 can be distinguished from the blood of all other animals 
 (except, perhaps, that of the ape) ; and, further, that the 
 blood of each individual animal can be identified. This test 
 depends upon the fact that the blood serum of one animal, 
 after certain treatment, is haemotoxic to the blood of the 
 same animal and to that of no other, and is closely akin to 
 the (Vidal's) serum reaction frequently used for the 
 diagnosis of enteric fever. It is equally applicable to fresh 
 blood and to blood stains which have been dried and 
 exposed to the air for some considerable time. 
 
 As this method is little known, it may be of interest to 
 describe the technique in some little detail. 
 
 Ten cubic centimetres of defibrinated human blood are 
 injected into the peritoneal cavity of a rabbit every six or 
 eight days, and after five such injections the blood serum 
 or the blood itself of the rabbit is available for use as 
 follows : 
 
 Dissolve the spot of blood that requires identification 
 in normal saline solution — or, better, distilled water ; filter, 
 and place 4 or 5 cub. cent, in two small test tubes. 
 
 To one of these (a) add 0*5 cub. cent, of rabbit's blood
 
 424 APPENDIX. 
 
 made haemotoxic as above ; to the other (b) add O'l; cub. 
 cent, of normal rabbit's blood. A third control tube (c) 
 may be made with 4 or 5 cub. cent, of a solution in distilled 
 water of the blood of any other animal, except ape or man. 
 Place the solutions in a warm chamber at 37° C. : if 
 the spot of blood be human, in an hour's time the tube (a) 
 will show a turbidity or precipitate, while (b) and (c) will 
 remain perfectly limpid. 
 
 This can be even better carried out in hanging drop 
 preparations under the microscope. It is necessary that 
 the quantity of serum used in this test should be carefully 
 measured to ensure equal treatment of the various tubes. 
 
 It is obvious that by preparing a number of sera rendered 
 haemotoxic by the blood of different animals, a spot of blood 
 of unknown origin can be identified, provided that it 
 belongs to one of the various species of animals with 
 whose blood haemotoxic rabbit serum has been prepared. 
 
 Vide, British Medical Journal, March 30, 1901, p. 7S8. 
 Ibid. Epitome, June 29, 1 901, p. 436. 
 Journal, Royal Microscopical Society, 1901, p. 791. 
 
 Note to p. 381. By The Editor. 
 
 A constant source of difficulty in judicial investigations 
 lies in what seems almost like an ineradicable tendency of 
 human nature — an impulse to appear to know everything 
 about occurrences of which the witness in reality knows 
 but a part, and often a small part. I have been constantly 
 struck with this phenomenon in cases of collision between 
 two vehicles. No matter how instantaneous the occur- 
 rence may have been, the witnesses, unless stunned at the 
 time, almost always speak to every detail. It seems to 
 require some moral courage to say " I don't know." It is not 
 that the witnesses mean to deceive, but they have reasoned 
 out what they never really observed, and confound the im- 
 pressions so produced with those of actual observation. I
 
 APPENDIX. 425 
 
 once met with a bad carriage accident myself. I was 
 particularly well situated for observation, and was not 
 stunned for more than a few seconds. I believe I know 
 how it happened, but I am conscious that I know it only 
 by reasoning upon the little that I did see. Had I not had 
 the warning of long professional experience, I hav.- little 
 doubt that I should have come to suppose I had seen it all.
 
 INDEX. 
 
 (Numbers refer to pages.) 
 
 A. 
 
 ABILITY, to commit a crime, 154/*, 359 J, 359^*- 
 ABORTION, 
 
 other instances, 1547*- 
 
 possession of instruments, 154^*. 
 
 knowledge of drugs, 154^*. 
 
 expert testimony, I54jr**. 
 
 proof of pregnancy, i^zk. 
 ABSENCE OF MOTIVE, 213, 237^ 
 
 for suicide, 359 711. 
 ACCIDENT, 
 
 burden of proof, 272^, 291, 3597. 
 
 as defence in a poisoning case, 336. 
 
 evidence in rebuttal, 3597. 
 ACCOMPLICE, corroboration of, 365, 422/ 
 ACTS, 
 
 indicative of guilty consciousness or intention, 55, 154^, 154^**, 
 
 359''- 
 
 indicating guilty knowledge, 154^', 154^. 
 
 conduct when arrested, 154^**. 
 ADMISSIONS OF GUILT, implied, 154 /**. 
 ADULTERY, other acts to show mutual disposition, 154/*. 
 ALIBI, 
 
 as a defence, 230, 237 c*. 
 
 time of asserting, 232. 
 
 weight of as evidence, 237 d*. 
 
 rebuttal of, 237/"*. 
 
 attempt to establish a false, 125, 154 q**, 234. 
 
 cases where proved, 244. 
 
 burden of proof, 272 r. 
 
 example of, 2027*, 359^. 
 ALLUSIONS, to a contemplated act, 154?^. 
 ANARCHISTS' CASE, of Chicago, 154 <?.
 
 428 INDEX. 
 
 (Numbers refer to pages.) 
 
 APPEARANCE, 
 
 of person of accused, 1 54 x*. 
 
 of clotliing, 154 y*. 
 APPEARANCES OF SUSPICION, 81, 155 x*. 
 
 failure to explain, 154J*, 154^**. 
 
 caution in relying on, I54rt;**. 
 APPENDIX, test for human blood, 423. 
 APPREHENSION, of danger to show self-defence, 237^. 
 ARREST, 
 
 evasion of, 154 e**. 
 
 explanation of evading, 237 v. 
 
 crime to escape, 1 54 n. 
 ARSENIC, test for, 138, 311. 
 ARSON, 
 
 other fires, 59, 1547*- 
 
 motives for, 154^. 
 
 possession of stolen property to prove, yy. 
 
 other attempts, 154/*- 
 
 instruments to commit, I54<?*. 
 
 corpus delicti in, 359 a. 
 ARTICLES OF PROPERTY, 
 
 identification of, 178-183, 202/, zozp, 202 i*. 
 
 laundry marks, 202 r. 
 
 color and smell, 202 r. 
 
 cattle brands, 202 r. 
 
 to identify dead body, 359^. 
 ASSURANCE, produced by circumstantial evidence, 18^. 
 ATTEMPTS, 
 
 to compromise, 154^**. 
 
 to escape, 1 54 /**. 
 
 to divert suspicion, 154;/**, 359/, 390. 
 
 to poison, 321. 
 
 to prove commission of subsequent crime, 154/*. 
 
 to influence witnesses and officials, 349. 
 AUTHENTICITY OF DOCUMENTS, 195-201. See Com- 
 parison. 
 
 B. 
 
 BASTARD CASES, 237^. 
 
 identity of father, 202 c. 
 BERTILLON METHOD of identifying criminals, 202 n. 
 BEST EVIDENCE RULE, 259, 272 ^. 
 
 criticised, 272 c. 
 
 proof of former testimony, 272 d.
 
 INDEX. 429 
 
 (Numbers refer to pages.) 
 
 BLOOD, test for, 423. 
 BLOODHOUxND, used to identify, 202 /&. 
 BLOOD STAINS, 
 
 obliteration of, 1 17. 
 
 expert evidence, 143, 1547-'**. 
 
 false explanations of, 1542:*. 
 
 identification by, 174, 202^, 202/', 384. 
 
 case where they were explained, 250. 
 
 to prove corpus delicti, 3S9^^- 
 
 in homicide, 359 r, 359/, 359^^. 
 BODY OF DECEASED, 
 
 identification of, 288. 
 
 posi ino7-teiii appearances, 294. 
 
 need not be found, 282, 359 1', 359^. 
 BRIBERY, 
 
 other acts, 154 d?*. 
 
 of witnesses, 113, 154;;/**. 
 
 of jurors, 1 54 «**. 
 BULLETS, used to identify, 166, 202 j. 
 BURDEN OF PRODUCING EVIDENCE, 272;;/. 
 BURDEN OF PROOF, 
 
 on party asserting a fact, 255, 2j2b. 
 
 in criminal cases, 272 /«. 
 
 on defendant, 272 /, 272 o. 
 
 mitigating circumstances, 272 /, 272 <?. 
 
 insanity, 272 />. 
 
 alibi, 272 r. 
 BURGLAR'S TOOLS, possession of, 154;;*, 202/. 
 BURGLARY, 
 
 possession of the stolen goods, 154/*. 
 
 possession of tools, 202 1. 
 
 c. 
 
 CAPACITY TO COMMIT CRIME, 203. See Insanity. 
 
 CAPITAL PUNISHMENT, Austrian code, 367. 
 
 CATTLE BRANDS, 202;'. 
 
 CAUSE OF DEATH, proof of, 291, 359//, 359''- See Corpus 
 
 DELICTI. 
 
 CHARACTER OF ACCUSED, 226, 237 ^*, 237^'*. 
 particular facts, 229, 237 h*. 
 of deceased to show self-defence. 237 h. 
 of third persons, 237 /.
 
 430 INDEX. 
 
 (Numbers refer to pages.) 
 
 CHARACTER OF ACC\J ^ILU — Conthuud. 
 
 of prosecutrix in rape, 20S, 237 /. 
 
 weight of, as evidence, 237 c*. 
 
 not disposition. 237//*. 
 
 Webster's trial, 359/. 
 CHARACTERISTICS of circumstantial evidence, 19, 46 «. 
 
 CHASTITY, 
 
 reputation for, 208, 237 t. 
 
 particular acts, 237 n. 
 
 proof of, 272 /, 272 s. 
 CHEMICAL ANALYSIS, in poisoning cases, 310, 359 2-, 359 /;*. 
 CIRCUMSTANCES, 
 
 to be clearly proved, 238, 272 a. 
 
 burden of proof, 255. 
 
 must be incapable of explanation except by guilt, 262, 272 e. 
 
 concurrence of many, 368, 422 d. 
 
 inconsistency of, 379. 
 
 weight of, as basis for inference, 422 a. 
 CIRCUMSTANTIAL EVIDENCE, 
 
 to prove other circumstances, 18^. 
 
 too remote, 187'. 
 
 essential characteristics, 19, 46 «. 
 
 relative value of, 34, 46 e. 
 
 compared with direct, 34, 46 e. 
 
 sources and classification of, 43, 46 /. 
 
 fallibility of, 46 /. 
 
 comparative liability to error, 46^. 
 
 caution required, 46/^. 
 
 credibility of, 204. 
 
 rules of induction applicable to, 238. 
 
 to prove corpus delicti, 274, 359 1, 359 w, 3592". 
 
 to identify body, 289, 359/. 
 
 force and effect of, 360. 
 
 capital punishment, Austrian code, 367. 
 
 considerations augmenting force of, 368, 422^. 
 
 compared to a chain, 369. 
 
 difficulty of fabricating, 373. 
 
 illustrations of force of, 383. 
 
 necessity of, 421. 
 
 dangers inherent in, 422/". 
 CLASSIFICATION of circumstantial evidence, 43, 46 w. 
 
 of presumptions, 422 a. 
 CLEAR PROOF, of circumstances, 238. 272 a. 
 CLOTHING, to identify, 166, 202 d, 202 /*.
 
 INDEX. 431 
 
 (Numbers refer to pages.) 
 
 COLT, JOHN C, trial of, 359/. 
 COMPARISON 
 
 of handwriting, 185. 
 
 by experts, 185, 202 iv. 
 
 by the jury, 202 w. 
 
 by lay witnesses, 202 z. 
 
 standard of, 202 a*. 
 
 genuineness of standard, 202 a*. 
 
 letterpress and photographic copies, 202 c*. 
 
 People V. Molineux, 202 f*. 359^*. 
 
 trial of Richard P. Robinson, 202^*, 202/1*. 
 COMPLAINTS 
 
 in rape, 207, 237 r. 
 
 terms of, 237 s. 
 CONCEALMENT, 
 
 as indicating guilt, 107. 
 
 of death in homicide, 118. 
 
 of the dead body, 119, 292, 359 /, 359 z/. 
 
 of another crime as motive, I54«. 
 
 of illicit intercourse, 154//, 388. 
 
 of marriage, 1 54 k. 
 
 of misdoing as motive for false accusation, 207. 
 
 of death of child, 215. 
 
 lack of, to show innocence, 218. 
 CONCLUSION, 420. 
 
 CONCLUSIVE PRESUMPTIONS, exculpatory, 237^. 
 CONCLUSIVE PROOF defined, 18 t-. 
 CONCURRENCE of many circumstances, 368. 
 CONDUCT, 
 
 when arrested, I54<^**. 
 
 during trial, 154^;^**. 
 
 of injured party to show fact of crime, 207. 
 
 to raise presumption of innocence, 211, 237 a*. See Acts and 
 Declarations. 
 
 in poisoning cases, 317. 
 
 to prove corpus delicti, 359*5. 
 CONFESSIONAL EVIDENCE, 
 
 indirect, 91, i54<r** 
 
 reliability of confessions, 91. 
 
 false confessions, 93-98. 
 
 reliability of indirect confessional evidence, 102, \i\b*'*. 
 
 implied admissions of guilt, 154 i**. 
 CONFESSIONS, 
 
 corroboration required, ZSOP- 
 
 of third persons, 237 n.
 
 432 INDEX. 
 
 (Numbers refer to pages.) 
 
 CONSCIOUSNESS 
 
 of guilt, 55, i54.f, i54<5**. 
 
 demeanor to indicate, 154 a', 3SS. 
 
 of innocence, 211, 237 a*. 
 CONSISTENCY of many circumstances, 36S, 422 d. 
 CONSPIRACY, I54y*. 
 
 CONTRADICTORY STATEMENTS, 154^*:'. 
 CORPUS DELICT/, 
 
 scientific testimony, 137. 
 
 cases where not proved, 148. 
 
 to be proved beyond reasonable doubt, 266, 359 a. 
 
 proof of, 273, 274, 359 .?, 359^. 
 
 in homicide, 282, 359 d. 
 
 identification of body, 288, 359/"- 
 
 in poisoning cases, 294. 
 
 in infanticide, 352. 
 
 defined, 359 «• 
 
 body need not be found, 282, 359^, 359^- 
 
 instances of sufficient proof, 359 w. 
 
 instances of insufficient proof, 248, 359 71. 
 
 corroboration of confession I'cquired, lS9p- 
 
 Webster's trial, 359 v. 
 CORROBORATION of prosecutrix in rape, 364. 
 
 of accomplice, 365, 422/'. 
 COUNTERFEITING, 
 
 other utterances, 58, 154/r*. 
 
 possession of counterfeit money, 65, 154//*. 
 
 possession of instruments, \^^o*. 
 CRIMINAL CONVERSATION, 154^*. 
 
 CRIMINAL ORGANIZATION, membership in as motive for 
 homicide, 154/. 
 
 D. 
 
 DANGEROUS CHARACTER of deceased in homicide, 237/^. 
 
 of third persons, 237 /. 
 DATES, verification of, 195, 202 1*. 
 DEATH, 
 
 cause of, 291, 359 //. 
 
 proof of, 359 d. 
 
 indirectly caused, 359 i. 
 
 head of deceased produced in court, 359 u. 
 
 in poisoning cases, 3595-. 
 
 in infanticide, 359/*.
 
 INDEX. 433 
 
 (Numbers refer to pages.) 
 
 DECLARATIONS, 
 
 indicative of guilty consciousness, 55, 1545', 1^4^**' 
 
 to prove intent, 154/. 
 
 of purpose on leaving home, 154 le. 
 
 allusions to a contemplated act, 154?/. 
 
 threats, 154.1-. 
 
 of deceased to prove suicide, 359^. 
 DEFENCE OF ANOTHER, 237 /. 
 DEMEANOR, 
 
 to indicate innocence, 211, 237 a*. 
 
 to show guilt, iS4-^- 
 
 See Acts, Suspicious Circumstances. 
 DESTRUCTION OF EVIDENCE, iii, 154^?**, 326, 332, 33S, 
 
 348- 
 DIRECT EVIDENCE, 
 
 distinguished from indirect, 19. 
 
 relative value of, 34, 46 c. 
 
 preferred to circumstantial, 46//, 272^. 
 
 fallibility of, 46 /. 
 DISCREPANCY, 
 
 as to minor circumstances, 379. 
 
 instances of, 38 1. 
 DISGUISE, as indicating guilt, 107. 
 DISPOSITION, to show character, 237//*. 
 DOCUMENTARY CIRCUMSTANTIAL EVIDENCE, 5. 
 DONELLAN'S CASE, 114, 324. 
 DOUBT, 
 
 proof beyond any reasonable, 266. 
 
 defined, 272 h. 
 
 "on part of one juror, 2727. 
 
 E. 
 
 ESCAPE, 
 
 attempted, 154/**. 
 
 refusal to, 237 a*. 
 EVASION OF ARREST, 154^** 
 
 explanation of, 237 7^ 
 EVIDENCE, 
 
 nature of, i. 
 
 definition, 2, 18 a. 
 
 kinds of, 3. 
 
 moral, 4, i8_X" 360.
 
 434 INDEX. 
 
 (Numbers refer to pages.) 
 
 EVIDENCE— 0///////^''/. 
 
 positive and negative, iS a, 383. 
 
 order of, 18 i,'. 
 
 weight of. 184'. 
 
 too remote, iSy. 
 
 indirect. Sec Circumstantial Evidence. 
 
 presumptive, 21. 
 
 direct preferred, 46//, 272 c/. 
 
 suppression, destruction, and fabrication of, 11 1, 154/**. 
 
 confessional, 91. 
 EXCULPATORY FACTS, burden of proof, 272/, 272 m. 
 EXCULPATORY PRESUMPTIONS, 203, 237 a. 
 EXPERIENCE, 
 
 the standard of credibility, 12, 18/. 
 
 reliability of, i8^;f. 
 EXPERIMENTS, 154^**. 
 
 to show impossibility, 237 «. 
 
 to rebut claim of suicide, 359 m. 
 EXPERT TESTIMONY, 137. 
 
 value of, 154/**, 192, 202_y. 
 
 qualification of experts, 154/**, 202 ;r. 
 
 in poisoning cases, 154?^**, 310, 359 •^• 
 
 blood stains, 154 -z/**, 202^. 
 
 experiments, 154 w**. 
 
 cause of an injury or death, 154;!'**. 
 
 rape and abortion, 1 54 x**. 
 
 pregnancy, i54_y**. 
 
 to show time since death, 202. 
 
 handwriting, 142, 185, 202 w, 202<-/*. 
 
 weight of, 192, 202 J. 
 EXPLANATIONS, 
 
 of suspicious circumstances, 81, 221, zyj ti- 
 
 time made, 84. 
 
 of possession of fruits of crime, 68, 80, 154X*. 
 
 See False explanations. 
 EXTRINSIC INCULPATORY INDICATIONS, 155. 
 
 FABRICATION OF EVIDENCE, 1 11, 154^**, 208. 
 difficulty of, 373. 
 
 of evidence to divert suspicion, 225. 
 of alibi, 234, 237/* 125, 154^**.
 
 INDEX. 435 
 
 (N'umbers refer to pages.) 
 
 FAILURE, 
 
 to explain suspicious circumstances, I54_y*, 154;'**. 
 
 to call witnesses, 154 r**. 
 
 to testify, 1 54 j**. 
 
 to produce evidence, 272 e. 
 FALSE ACCUSATIONS, 208. 
 
 of rape, 207. 
 FALSE ALIBI, 125, 154$?**, 234, 237/*. 
 FALSE CONFESSIONS, 93-98. 
 FALSE EXPLANATIONS, 66, 154^**. 
 
 of possession of fruits of crime, 68, 80, 154:1:*, \^^a**. 
 
 of suspicious appearances, 81, 154^*, 1545'*, 384. 
 
 in larceny, 154 a** 
 FAMILY LIKENESS, to prove identity, 164, 202^. 
 FEUDS, to prove homicide, 154//, I'^^b*. 
 FLIGHT, 107, 154^**. 
 
 preparation to fly, 154^*. 
 
 of accomplice, 154^**. 
 
 instructions to jury, 154// **. 
 
 lack of to show innocence, 218. 
 
 explanation of, 237 w. 
 FOOTPRINTS, 
 
 to identify, 1 71-178, 202 /;. 
 
 cases where used to identify, 244, 252, 359 r, 384. 
 FORCE OF CIRCUMSTANTIAL EVIDENCE, 360. 
 
 considerations augmenting, 368, 422^. 
 
 illustrations of, 383. 
 FOREKNOWLEDGE OF DEATH, 154a/, 154 ;*, 120, 325. 
 FORFEITING BAIL, 154/^** 
 FORGERY, 
 
 other like offences, 58, 154^*- 
 
 possession of instruments, 154(9*. 
 
 skill of defendant, 154^*. 
 
 of letter to indicate suicide, 125. 
 
 proof of handwriting, 189, 402, 413. 
 
 internal contents of document to detect, 195-201, 402, 413. 
 
 Matlock will case, 402. 
 FORMER TESTIMONY, proof of, 272^. 
 FRAUD, other crimes to show intent, 154^^*, 154/"*. 
 FRUITS OF CRIME, 
 
 recent possession, 68, 154 j'*-i54jr* 202 j-, 348, 3591!^, 359 ^. 
 
 possession by another than defendant, 154 w*.
 
 436 INDEX. 
 
 (Numbers refer to pages.) 
 
 GENERAL REPUTATION. Scr Character. 
 GENUINENESS of documents, 195-201. See Comparison. 
 GRIEF, affectation of, 120, 154/**. 
 GROUNDS OF FAITH in circumstantial evidence, 360. 
 
 GUILT, 
 
 otlier reasonable hypotheses must be excluded, 262, 272 e. 
 
 to be proved be3-ond reasonable doubt, 266, 272 /;. 
 
 incompatibility of one fact with, 272 i,'^. 
 GUILTY CONSCIOUSNESS, declarations and acts indicative of, 
 
 55, 1 54 J, I54.ir, 154^**, 388. 
 GUILTY KNOWLEDGE, 
 
 possession of, 1547/. 
 
 conduct indicating, 1547/, 419. 
 
 of receiver of stolen goods, 154/"*. 
 
 in uttering counterfeit money, 154/i*. 
 GUN -WAD DING, to identify, 170, 202 _^, 202 s. 
 
 H. 
 
 HANDWRITING, 
 
 expert evidence, 142. 
 
 opinion evidence, 202 u. 
 
 proof of, 184, 202 u. 
 
 comparison of, 185, 202 lu, 202 e*. 
 
 imitation of, 189. 
 
 weight of evidence as to, 192, 202/. 
 
 misspelt words, 194, 197. 
 
 qualification of experts, 202 x. 
 
 illegible, 202^. 
 
 testing expert's opinion, 202_y. 
 
 refreshing memory of. 202 s. 
 
 belief of witness as to handwriting, 202/*. 
 
 proof of forgery by, 402, 413. 
 
 Webster's trial, 359 j. 
 
 Molineux case, 359 d*, 202 e*. 
 
 Matlock will case, 402. 
 HATRED of deceased to show self-defence, 237/'. 
 HOMICIDE, 
 
 motives for, 1 54/'. 
 
 relations between deceased and defendant, 154^.
 
 ini)l:x. 437 
 
 (Numbers refer to pages.) 
 
 HOMICI DE — Continued. 
 revenge, i54ir- 
 
 discharge of employee, \l\h. 
 neighborhood feud, 154/', ^■S^b*. 
 jealousy, 1 54 ^'• 
 unrequited love, 154/- 
 race antipathies, 154/. 
 
 membership in a criminal organization, 154^ 
 relations with wife of deceased, 1547- 
 wife-murder, 1547- 
 concealment of marriage, 154 -i'. 
 to escape arrest, I54«. 
 state of mind in, \i\u. 
 foreknowledge of death, 154W. 
 previous quarrels, 154^*. 
 feuds, 154/^ 154'^* 
 prior attempts, 154^*- 
 possession of instruments, I54;«*. 
 relative strength of defendant, 154/'* 
 
 knowledge of weapons, 154''*- 
 
 possession of fruits of the crime, 154/*, IS4« 
 
 proof of degree of, 272 k, 272 o. 
 
 proof oi corpus delicti, 282, 359 </• 
 
 production of body, 282, 359 f. 
 
 poisoning cases, 294, 359 2. 
 
 infanticide, 352, 359/^*- 
 
 false confessions, 93-98. 
 
 expert testimony, I37, 1 54 ■»■**-! 54 -*''' 
 
 concealment of illicit intercourse, 1 54 «' 38^- 
 
 self-defence, 237 c. 
 
 suicide as a defence, 237 q. 
 HORSE-TRACKS, to identify, 177, 2027 
 
 I. 
 
 IDENTIFICATION, 
 
 of stolen property, 79- 
 of person, 156, 202 a. 
 i cases of mistaken, 156. 
 
 light necessary for, 159. 
 
 personal peculiarities, 161, 202 «, 202^, 202 j . 
 by family likeness, 164, 202^. 
 by wounds, 166, 202 c. 
 by photographs, 165, 202 c, 3S9J^- 
 by voice, 165, 202^. 
 by clothing, 166, 202 (f, 202 i*, 384, 393- 

 
 438 INDEX. 
 
 (Numbers refer to pages.) 
 
 IDENTIFICATION — Continue,/. 
 by bullets, i66, 202 s. 
 by articles of property, 167, 202/ 202 z* 
 by torn paper, 169. 
 by gun-wadding, 170, 202^4'-, 202 j. 
 by footprints, 171-178. 202//, 384. 
 by blood stains, 174, 202 e, 202 k, 384. 
 of articles of property, 178-183, 202/ 202/. 
 by proof of other crimes, 202_<;. 
 by horse and wagon tracks, i JT, 202 j. 
 by bloodhound, 202 k. 
 sufficiency of, 202 /. 
 Bertillon method, 202 n. 
 case of incorrect, 250, 252. 
 
 beyond reasonable doubt, 266, 272 h, 272 k, 272 /. 
 of body of deceased, 285, 288, 359/ 359 -i^- 
 rebuttal evidence, 22,'] y. 
 
 IDENTITY, 
 
 denial of, 154 c/**. 
 
 questions of, 155, 202 a. 
 
 See Identification. 
 ILLEGAL SALES OF LIQUOR, 154/* 
 ILLEGITIMATE CHILD, 
 
 death of, 215. 
 
 presumption from concealment, 216. 
 
 corpus delicti, 352. 
 
 proof of death, 359^. 
 ILLICIT INTERCOURSE, 
 
 concealment of as a motive, 154;/. 
 
 other instances, I54>t*. 
 
 homicide to conceal, 388. 
 INCONSISTENCY OF CIRCUMSTANCES, 379. 
 INCULPATORY FACTS, must be incompatible with innocence, 
 
 262, 272^. 
 INCULPATORY INDICATIONS, 
 
 moral, 47. 
 
 extrinsic and mechanical, 155. 
 INDEPENDENT CIRCUMSTANCES, concurrence of, 368, 422^/. 
 INDIFFERENCE, to show desire for another's death, 154 jr. 
 INDIRECT CONFESSIONAL EVIDENCE, 91, 154^**. 
 
 reliability of, 102. 
 
 weight of, 1 54 b**. 
 
 implied admissions of guilt, 154/**. 
 
 silence, 1547**.
 
 INDEX. 439 
 
 (Numbers refer to pages.) 
 
 INDIRECT EVIDENCE. Sec Ci-rcumstantial. 
 
 INDUCTION, rules of, 238. 
 
 INFANTICIDE, 
 
 proof of corpus delicti, 352, 359 -f, 359/'*. 
 
 presumptions, 215, 216, 355. 
 
 pregnancy, 352, 359 z*. 
 
 proof of birth alive, 353, 359 i*. 
 
 motives, 355. 
 
 casualties of birth, 356. 
 
 proof of death, 359 e. 
 
 cause of death, 359 /'*. 
 
 sufificiency of evidence, 3597. 
 INFERENCES FROM INFERENCES, 18^. 
 INNOCENCE, 
 
 presumption of, 204, 211, 237 <5. 
 
 consciousness of, 211, 237 «*. 
 
 facts proved must be wholly inconsistent with, 262, 272^. 
 
 absolute impossibility of, 272g. 
 INSANITY, 
 
 expert testimony, 137. 
 
 feigned, 154^**, 
 
 burden of proving, 2j2p. 
 
 preponderance required, 272 p. 
 
 burden on state, 272 r. 
 INSURANCE MONEY, as motive, 120, 359.^*. 
 INTENTION TO COMMIT CRIME, 
 
 declaration and acts indicative of, 55, 154 J", 154/. 
 
 threats, 1 54 x. 
 
 system to show intent, 154 /*. 
 INTIMIDATION OF WITNESSES, 1 13, 154 ;«**, 359 /&. 
 INTOXICATION, as a defence, 237 «. 
 INTUITION, 3. 
 
 J. 
 
 JEALOUSY, 
 
 as a motive for homicide, 154/^ 202^*. 
 
 as motive for charging a crime, 206. 
 JUDGMENT, the, defined, 2. 
 JUSTIFICATION, 
 
 proof of facts, 272 /. 
 
 burden of proof, 272 ;;/.
 
 440 INDEX. 
 
 (Xiinibeis refer to pages.) 
 
 L. 
 
 LARCENY, 
 
 other tliefts, 154^*, 154/*. 
 
 recent possession of the stolen goods, 68, 154 J"*, 1547/*, 154 a**. 
 
 proof of facts, 272 /. 
 LAUNDRY MARKS, 
 
 to identify property, 202 r. 
 
 as a clue, 415. 
 LEGAL PRESUMPTIONS, 23. 
 LIGHT PRESUMPTIONS, 422 <5. 
 LINKS IN CHAIN OF EVIDENCE, 272 «. 
 LIQUOR SALES, 154 z*. 
 
 M. 
 
 MALICE, 154 X. 
 
 declarations to prove, 154/. 
 
 previous quarrels, 154 a*. 
 
 proof of, 272 A. 
 
 burden of proof, 272 n. 
 MALPRACTICE, death ascribed to, 272s. 
 MATLOCK WILL CASE, 402. 
 
 MECHANICAL INCULPATORY INDICATIONS, 155. 
 MINOR DISCREPANCIES, 379. 
 
 instances of, 381. 
 MISSPELT WORDS, 
 
 to identify handwriting, 194, 402. 
 
 to prove forgery, 409. 
 MITIGATING CIRCUMSTANCES, proof of, 272/, 272 //z, 272^. 
 MOLINEUX CASE, 202^*, 359^*. 
 MORAL CERTAINTY, 8, 272/ 
 MORAL EVIDENCE, 4, 18/. 
 
 grounds of faith in, 360. 
 MORAL INDICATIONS, inculpatory, 47. 
 MOTIVE, 
 
 not necessary to be proved, \8/. 154 f. 
 
 of third person to procure murder, 1541^0 
 
 probative value, 154 <5. 
 
 failure to prove, i^^d. 
 
 other crimes to show, 154 /«, I54£'*. 
 
 previous quarrels, 1^4. a*.
 
 INDEX. 441 
 
 (Numbers refer to pages.) 
 
 MOTIVE, — Continued. 
 
 system, to show, 154/*. 
 
 of the prosecuting witness, 20S. 
 
 absence of, 213, 237J. 
 
 innocent, 237 2. 
 
 evidence in rebuttal, 237 z. 
 
 to rebut claim of accident. 3597. 
 MOTIVES TO CRIME, 47, 154 «. 
 
 lapse of time as affecting, \SA<^- 
 
 desire for wealth, I54(/, 152*324. 
 
 financial necessity, 154^, 331, 344, 359 w, 390. 
 
 life insurance money, 154^', 120, 359^j^*. 
 
 for arson, 154^. 
 
 for robbery, 154/". 
 
 for homicide, 154/^ 
 
 concealing defalcations, 154^. 
 
 not to commit a crime, 217. 
 
 of third persons, 237 o. 
 MURDER, 
 
 other murders, 60. 
 
 motives for, 154/". 
 
 See Homicide. 
 
 N. 
 
 NATURAL PRESUMPTION.S, 23. 
 NATURE OF THE ASSURANCE 
 
 produced by evidence, 5, 18^. 
 
 by circumstances, 18^. 
 NEGATIVE EVIDENCE, weight of, 18^, 3S3. 
 
 o. 
 
 OBLITERATION OF EVIDENCE, 1 17. 
 
 OMISSIONS IN ACCOUNTS OF WITNESSES, 382. 
 
 OPINION, as to identity, 359/^. 
 
 of experts, 141, 154/**. 
 
 See Expert Testimony. 
 
 See Handwriting. 
 OPPORTUNITY, 
 
 to commit crime, 65, 68, \^:\o*. 
 
 presence at place of crime, 154/*, 359 r. 
 
 to give poison, 297.
 
 442 INDEX. 
 
 (Numbers refer to pages.) 
 
 ORDER OF EVIDENCE, i8^. 
 ORTHOGRAPHY, 
 
 to prove autlienticity of instruments, 194, 197. 
 
 to prove forgery, 409. 
 OTHER CRIMES, 
 
 to show motive, 154 w. 
 
 concealment of, I54«. 
 
 proof of, in general, 154^. 
 
 when not admissible, i^^d*. 
 
 when admissible, 154^*. 
 
 to prove identity, 202^^. 
 
 former acts of poisoning, 321, 359 <^*. 
 
 proof of — Molineux case, 359 i*. 
 
 to rebut claim of accident, 359 ^. 
 
 PARTICULAR ACTS, to show character, 237 /i*. 
 PECULIARITIES of personal appearance, 161, 202a, 2020, 202 J*. 
 PERJURY, 
 
 other instances, 154/^*. 
 
 number of witnesses required, 363. 
 PERSONAL APPEARANCE, 
 
 to identify, 161, 202 a. 
 
 of accused, 154 a'*. 
 PERSONAL PECULIARITIES, to identify dead body, 359/ 359 a-. 
 PHOTOGRAPHS, 
 
 used to identify, 165, 202 c. 
 
 to identify dead body, 359^- 
 POISON, possession of, I54«*, 296, 359/"*. 
 POISONING CASES, 
 
 proof of corpus delicti, 294, 359 2. 
 
 possession of poison, 296, I54«*, 359/"*. 
 
 opportunity to administer poison, 297. 
 
 conduct of accused, 317. 
 
 former attempts, 321. 
 
 Donellan's case, 114, 324. 
 
 Molineux case, 359 (^*. 
 
 other cases, 359^* 
 
 other like crimes, 60, 154 w, IS4<?*, 154/^*. 
 
 case of Sarah Jane Robinson, 120. 
 
 expert evidence, 1 54 71**.
 
 INDEX. 443 
 
 (Numbers refer to pages.) 
 
 POSITIVE AND NEGATIVE EVIDENCE, i8<7, 3S3. 
 POSSESSION, 
 
 of means to commit crime, 65, i ^4m*-iS-\o*, 202 /, 359;'. 
 
 false explanations, 66. 
 
 of the fruits of crime, 68, 154 j*,- 154 a-*, 202 s, 348, 359^. 
 
 of the fruits of a series of crimes, 72- 
 
 of instruments to kill, 154;/'/*. 
 
 of poison, 154 «*, 296, 359/"*. 
 
 of burglar's tools, 154 «*, 202 /. 
 POSSESSION OF STOLEN GOODS, 
 
 rebutting inference from, 219. 
 
 explanation of, 237 w. 
 POST MORTEM appearances, 294. 
 POST-OFFICE MARKS to prove dates, 202. 
 PREDICTIONS, 
 
 of death, to sliow homicide, 66, 154 ■if, 154/"'*, 120, 325. 
 
 of a fire, I54.y*. 
 PREGNANCY, 
 
 expert testimony, 154^'**. 
 
 proof of in abortion, 272 k. 
 
 in infanticide, 352. 
 PREMEDITATION, 154.^. 
 PREPARATIONS, 
 
 to commit crime, 65, 154/*, 154 r*. 
 
 false stories to prepare others, 66, 120, 325, 339. 
 
 to fly, 154^**. 
 PRESUMPTIONS, 22, dfib. 
 
 necessary, probable, and slight, 32. 
 
 defined, 46 c. 
 
 conclusive, 46^. 
 
 of law, 46 c. 
 
 of fact, 46^, 154 w*. 
 
 statutory, 46^, 128. 
 
 classification of, 422 a, 32. 
 
 exculpatory, 203. 
 
 of innocence, 204, 211, 237^. 
 
 from concealment of death, 215. 
 
 conclusive, 237 a. 
 
 of coercion by husband, 237 a, 203. 
 
 from failure to produce evidence, 256, 272 e. 
 PRESUMPTIVE EVIDENCE, 21. 
 PREVIOUS bad character, 226, 237^*, 237^*. 
 PRIMA FACIE case, 272 /. 
 PRIOR ATTEMPTS, 154/. .Jtr Attempts.
 
 444 INDEX. 
 
 (Numbers refer to pages.) 
 
 PROBABILITY 
 defined, 6. 
 distinguished from certainty, 8. 
 
 TROOF 
 
 distinguished from evidence, 2. 
 
 conclusive, iS c. 
 
 beyond any reasonable doubt, 266, 272 h. 
 
 defined, 272 //. 
 
 amount of evidence necessary, 2727. 
 PROPERTY, 
 
 identification of, 178-183, 202/, 202/, 202/. 
 
 laundry marks, 202 r. 
 
 color and smell, 202 r. 
 
 cattle brands, 202 r. 
 PRUSSIC ACID case, 313, 336. 
 
 QUARRELS 
 
 previous to the crime, 154^*. 
 details of, \^\b*. 
 
 R. 
 
 RACE ANTIPATHY, as motive for homicide, 154/. 
 RAPE, 
 
 suppression of evidence, 127. 
 
 other crimes to prove, 154^*. 
 
 expert testimony, I54r**. 
 
 complaint of woman, 207, 237 r. 
 
 character of prosecutrix, 208, 237 t. 
 
 burden of proof, 272 j. 
 
 corroboration of prosecutrix, 364. 
 REASONABLE DOUBT, 
 
 connecting evidential facts \N\ihfaciii//i})robatidnin, 238. 
 
 guilt must be proved beyond, 266, 272 h. 
 
 defined, 272 h. 
 
 amount of evidence necessary, 2727. 
 
 alibi to create, 237 e*. 
 REBUTTAL 
 
 of self-defence, 237 fn. 
 
 of motive, 237 z. 
 
 of alibi, 237/"*. 
 
 of inference from suspicious circumstances, 221.
 
 INDEX. 445 
 
 (Numbers refer to pages.) 
 
 RECEIVING 
 
 stolen goods, 6i. 
 
 recent possession, 75. 
 
 other instances, 154 £*. 
 RECENT POSSESSION 
 
 of fruits of crime, 68, 154 j-*- 154.1-* 202 .r, 348, 359/^, 3597'. 
 
 inability to explain, 69. 
 
 of fruits of a series of crimes, 73. 
 
 may make out Ti. pri7}ia facie case, 154 v*. 
 REFRESHING MEMORY, as to handwriting, 202 ^. 
 REFUSAL to escape, 237 a*. 
 RELEVANCY, 18^. 
 REMOTENESS of evidence, 187. 
 REPUTATION. See Characteu. 
 RES INTER ALIOS, 154^/*. 
 REVENGE, as a motive for homicide, 154^. 
 
 as motive for false accusation, 210. 
 ROBBERY, 
 
 motives for, 154/". 
 
 possession of the fruits to prove, 154 /*, 202 j, 359 b. 
 ROBINSON, RICHARD P., trial of, 202/*, 202//*. 
 RULES OF INDUCTION, applicable to circumstantial evidence, 
 
 238. 
 
 S. 
 
 SCIENTIFIC TESTIMONY, 137, 154^** 
 
 to prove corpus delicti, 310. 359 ". 
 
 See Expert Testimony. 
 SECONDARY EVIDENCE, 260. 
 SEDUCTION, 
 
 proof of chastity, 272 /. 
 
 character of woman, 208, 237 /. 
 SELF-DEFENCE, 
 
 in homicide, 237 c. 
 
 apprehension of danger, 237 d. 
 
 burden of proving, 272 w, 272 o. 
 
 burden on defendant, 272 q. 
 
 burden on state, 272 r. 
 
 trial of John C. Colt, 359 /. 
 SIMILAR ACTS, proof of, 154 r*. 
 SIGNATURE, forgery of, 414. 
 SILENCE, as an admission, 1547**.
 
 446 INDEX. 
 
 (\ umbers refer to pages.) 
 
 SIMULATION 
 
 of evidence, in. 
 
 of suicide, 122. 
 SIZE, of deceased to .show self-defence, 237/. 
 SOURCES OF CIRCUMSTANTIAL EVIDENCE, 43, 46 /. 
 STATEMENTS. See Declarations. 
 STATE OF MIND IN HOMICIDE, 154 ;/. 
 STATUTORY PRESUMPTIONS, 46 rt', 128. 
 STOLEN PROPERTY, 
 
 possession of, 68, 154 j*-I54 a-*, 202 j. 
 
 recency of the possession, 70, \^\v*-\i\x*. 
 
 exclusiveness of possession, 71. 
 
 series of thefts, 73. 
 
 weight of possession as evidence, IT, 154 v*. 
 
 identification of, 79. 
 
 rebutting inference from possession of, 219, 237 w. 
 SUBORNATION of witnesses and officers, 113, 154///** 349. 
 SUBSIDIARY FACTS, proof of, 272 a, 281. 
 SUICIDE, 291, 293, 359^. 
 
 declarations of deceased, 359/1'. 
 
 evidence in rebuttal, 359 f», 359 «*• 
 
 absence of motive for, 359 w. 
 
 by poison, ^^ga*. 
 
 simulations of, 122. 
 
 evidence of, 237 g. 
 
 intention to commit, 237 g. 
 
 motives for, 237 r. 
 
 indications of, 224. 
 SUPPRESSION OF EVIDENCE, in, 154 /**, 259. 
 SURRENDER TO JUSTICE, voluntary, 218, 237 a*. 
 SUSPICION, attempts to divert, t54«**, 359/, 390. 
 SUSPICIOUS CIRCUMSTANCES, 81, 154:^*. 
 
 explanation of, 221, lyj u. 
 
 concurrence of many, 368, 422 d. 
 
 cases where explained, 240, 242, 250. 
 
 failure to explain, 256, 154^*, 154 r**. 
 
 in poisoning cases, 321. 
 
 Webster's trial, 3597/. 
 SUSPICIOUS CONDUCT, 154J* 359 r, 321. 
 
 caution in relying on, 154 a**. 
 
 when arrested, 154^^**. 
 
 See Conduct, Acts, Suspicious Circumstances. 
 SYSTEM, to show motive or intent, 154/*.
 
 INDEX. 447 
 
 (Numbers refer to pages.) 
 
 T. 
 
 TEETH, as a means of identification, 291, 359/", 359 t/. 
 
 TEST OF ADMISSIBILITY OF CIRCUMSTANCES, 18 ^. 
 
 TESTIMONY, 4, 18 a. 
 
 credibility of, 204. 
 
 scientific, 137, 1545**. 
 
 See Expert Testimony. 
 THEFT. See Larce.ny. 
 THIRD PERSONS, 
 
 evidence to show guilt of, 237 n. 
 
 threats of, 237/- 
 
 motives of, 237 0. 
 THREATS, 55, I54.r. 
 
 general threats, I54>'. 
 
 against a class, 154^'. 
 
 against third persons, I54_y. 
 
 to commit a different crime, 1542". 
 
 with a different weapon, 154.?. 
 
 uncommunicated, 1545", 237^. 
 
 time made, 154 a*. 
 
 of deceased to show self-defence, 237^. 
 
 of third persons, 237^. 
 
 explaining away, 237 j/. 
 
 to rebut claim of accident, 3S9J- 
 TIME, verification of, 201, zozd*. 
 TRACKS, to identify, 171-178, 202 //, 2027. 
 TREASON, amount of evidence required, 363. 
 
 u. 
 
 UNCOMMUNICATED THREATS, 237 //, 154^. 
 
 VALUE, in larceny, 272 /. 
 
 VALUE OF CIRCUMSTANTIAL EVIDENCE, 34, 46^. 
 VARIATIONS IN EVIDENCE OF CIRCUMSTANCES, 379. 
 VENUE, proof of by circumstantial evidence, 46/. 
 VERIFICATION OF DATES AND TIME, 195, 202 f*. 
 
 by internal contents, 197. 
 
 by type, paper, and ink, 202 c*.
 
 448 INDEX. 
 
 (Numbers refer to pages.) 
 
 VIOLENT PRESUMPTIONS, 422 «. 
 VOICE, to identify, 165, 202 c. 
 VOLUNTARY SURRENDER, 218, 237 «*. 
 
 W. 
 
 WAGON TRACKS, to identify, 202/ 
 WATER-MARK, to prove date, 196. 
 WEAK WITNESS, 272^. 
 WEAPONS, reputation for carrying, 237/ 
 WEBSTER, PROF. JNO. W., trial of, 359 7/. 
 WEIGHT, 
 
 of evidence required, 18 _^. 
 
 of circumstances, 422 «. 
 WIFE, presumption as to crimes of, 203, 237 <z. 
 WIFE-MURDER, 
 
 motives for, 1547. 
 
 concealment of marriage, 154^- 
 
 relations with other women, 154/, 417. 
 
 quarrels and ill-feeling, 1541^*. 
 WITNESSES, 
 
 subornation of, 113, 154/;?**. 
 
 intimidation of, 113, 154W** 
 
 failure to call, 154 r**. 
 WOUNDS, 81. 
 
 to identify, 166, 202 f.

 
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